[Page 542-594]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 93_DETERMINING CONFORMITY OF FEDERAL ACTIONS TO STATE OR FEDERAL
IMPLEMENTATION PLANS
Subpart A_Conformity to State or Federal Implementation Plans of
Transportation Plans, Programs, and Projects Developed, Funded or
Approved Under Title 23 U.S.C. or the Federal Transit Laws
Sec.
93.100 Purpose.
93.101 Definitions.
93.102 Applicability.
93.103 Priority.
93.104 Frequency of conformity determinations.
93.105 Consultation.
93.106 Content of transportation plans.
93.107 Relationship of transportation plan and TIP conformity with the
NEPA process.
93.108 Fiscal constraints for transportation plans and TIPs.
93.109 Criteria and procedures for determining conformity of
transportation plans, programs, and projects: General.
93.110 Criteria and procedures: Latest planning assumptions.
93.111 Criteria and procedures: Latest emissions model.
93.112 Criteria and procedures: Consultation.
93.113 Criteria and procedures: Timely implementation of TCMs.
93.114 Criteria and procedures: Currently conforming transportation plan
and TIP.
93.115 Criteria and procedures: Projects from a plan and TIP.
93.116 Criteria and procedures: Localized CO and PM<INF>10</INF>
violations (hot spots).
93.117 Criteria and procedures: Compliance with PM<INF>10</INF> control
measures.
93.118 Criteria and procedures: Motor vehicle emissions budget.
93.119 Criteria and procedures: Emission reductions in areas without
motor vehicle emissions budgets.
93.120 Consequences of control strategy implementation plan failures.
93.121 Requirements for adoption or approval of projects by other
recipients of funds designated under title 23 U.S.C. or the
Federal Transit Laws.
93.122 Procedures for determining regional transportation-related
emissions.
93.123 Procedures for determining localized CO and PM<INF>10</INF>
concentrations (hot-spot analysis).
93.124 Using the motor vehicle emissions budget in the applicable
implementation plan (or implementation plan submission).
93.125 Enforceability of design concept and scope and project-level
mitigation and control measures.
93.126 Exempt projects.
93.127 Projects exempt from regional emissions analyses.
93.128 Traffic signal synchronization projects.
93.129 Special exemptions from conformity requirements for pilot program
areas.
Subpart B_Determining Conformity of General Federal Actions to State or
Federal Implementation Plans
93.150 Prohibition.
[[Page 543]]
93.151 State implementation plan (SIP) revision.
93.152 Definitions.
93.153 Applicability.
93.154 Conformity analysis.
93.155 Reporting requirements.
93.156 Public participation.
93.157 Frequency of conformity determinations.
93.158 Criteria for determining conformity of general Federal actions.
93.159 Procedures for conformity determinations of general Federal
actions.
93.160 Mitigation of air quality impacts.
Authority: 42 U.S.C. 7401-7671q.
Source: 58 FR 62235, Nov. 24, 1993, unless otherwise noted.
Subpart A_Conformity to State or Federal Implementation Plans of
Transportation Plans, Programs, and Projects Developed, Funded or
Approved Under Title 23 U.S.C. or the Federal Transit Laws
Source: 62 FR 43801, Aug. 15, 1997, unless otherwise noted.
Sec. 93.100 Purpose.
The purpose of this subpart is to implement section 176(c) of the
Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), and the
related requirements of 23 U.S.C. 109(j), with respect to the conformity
of transportation plans, programs, and projects which are developed,
funded, or approved by the United States Department of Transportation
(DOT), and by metropolitan planning organizations (MPOs) or other
recipients of funds under title 23 U.S.C. or the Federal Transit Laws
(49 U.S.C. Chapter 53). This subpart sets forth policy, criteria, and
procedures for demonstrating and assuring conformity of such activities
to an applicable implementation plan developed pursuant to section 110
and Part D of the CAA.
Sec. 93.101 Definitions.
Terms used but not defined in this subpart shall have the meaning
given them by the CAA, titles 23 and 49 U.S.C., other Environmental
Protection Agency (EPA) regulations, or other DOT regulations, in that
order of priority.
Applicable implementation plan is defined in section 302(q) of the
CAA and means the portion (or portions) of the implementation plan, or
most recent revision thereof, which has been approved under section 110,
or promulgated under section 110(c), or promulgated or approved pursuant
to regulations promulgated under section 301(d) and which implements the
relevant requirements of the CAA.
CAA means the Clean Air Act, as amended (42 U.S.C. 7401 et seq.).
Cause or contribute to a new violation for a project means:
(1) To cause or contribute to a new violation of a standard in the
area substantially affected by the project or over a region which would
otherwise not be in violation of the standard during the future period
in question, if the project were not implemented; or
(2) To contribute to a new violation in a manner that would increase
the frequency or severity of a new violation of a standard in such area.
Clean data means air quality monitoring data determined by EPA to
meet the requirements of 40 CFR part 58 that indicate attainment of the
national ambient air quality standard.
Control strategy implementation plan revision is the implementation
plan which contains specific strategies for controlling the emissions of
and reducing ambient levels of pollutants in order to satisfy CAA
requirements for demonstrations of reasonable further progress and
attainment (CAA sections 182(b)(1), 182(c)(2)(A), 182(c)(2)(B),
187(a)(7), 189(a)(1)(B), and 189(b)(1)(A); and sections 192(a) and
192(b), for nitrogen dioxide).
Design concept means the type of facility identified by the project,
e.g., freeway, expressway, arterial highway, grade-separated highway,
reserved right-of-way rail transit, mixed-traffic rail transit,
exclusive busway, etc.
Design scope means the design aspects which will affect the proposed
facility's impact on regional emissions, usually as they relate to
vehicle or person carrying capacity and control, e.g., number of lanes
or tracks to be constructed
[[Page 544]]
or added, length of project, signalization, access control including
approximate number and location of interchanges, preferential treatment
for high-occupancy vehicles, etc.
DOT means the United States Department of Transportation.
EPA means the Environmental Protection Agency.
FHWA means the Federal Highway Administration of DOT.
FHWA/FTA project, for the purpose of this subpart, is any highway or
transit project which is proposed to receive funding assistance and
approval through the Federal-Aid Highway program or the Federal mass
transit program, or requires Federal Highway Administration (FHWA) or
Federal Transit Administration (FTA) approval for some aspect of the
project, such as connection to an interstate highway or deviation from
applicable design standards on the interstate system.
Forecast period with respect to a transportation plan is the period
covered by the transportation plan pursuant to 23 CFR part 450.
FTA means the Federal Transit Administration of DOT.
Highway project is an undertaking to implement or modify a highway
facility or highway-related program. Such an undertaking consists of all
required phases necessary for implementation. For analytical purposes,
it must be defined sufficiently to:
(1) Connect logical termini and be of sufficient length to address
environmental matters on a broad scope;
(2) Have independent utility or significance, i.e., be usable and be
a reasonable expenditure even if no additional transportation
improvements in the area are made; and
(3) Not restrict consideration of alternatives for other reasonably
foreseeable transportation improvements.
Horizon year is a year for which the transportation plan describes
the envisioned transportation system according to Sec. 93.106.
Hot-spot analysis is an estimation of likely future localized CO and
PM<INF>10</INF> pollutant concentrations and a comparison of those
concentrations to the national ambient air quality standards. Hot-spot
analysis assesses impacts on a scale smaller than the entire
nonattainment or maintenance area, including, for example, congested
roadway intersections and highways or transit terminals, and uses an air
quality dispersion model to determine the effects of emissions on air
quality.
Increase the frequency or severity means to cause a location or
region to exceed a standard more often or to cause a violation at a
greater concentration than previously existed and/or would otherwise
exist during the future period in question, if the project were not
implemented.
Lapse means that the conformity determination for a transportation
plan or TIP has expired, and thus there is no currently conforming
transportation plan and TIP.
Maintenance area means any geographic region of the United States
previously designated nonattainment pursuant to the CAA Amendments of
1990 and subsequently redesignated to attainment subject to the
requirement to develop a maintenance plan under section 175A of the CAA,
as amended.
Maintenance plan means an implementation plan under section 175A of
the CAA, as amended.
Metropolitan planning organization (MPO) is that organization
designated as being responsible, together with the State, for conducting
the continuing, cooperative, and comprehensive planning process under 23
U.S.C. 134 and 49 U.S.C. 5303. It is the forum for cooperative
transportation decision-making.
Milestone has the meaning given in sections 182(g)(1) and 189(c) of
the CAA. A milestone consists of an emissions level and the date on
which it is required to be achieved.
Motor vehicle emissions budget is that portion of the total
allowable emissions defined in the submitted or approved control
strategy implementation plan revision or maintenance plan for a certain
date for the purpose of meeting reasonable further progress milestones
or demonstrating attainment or maintenance of the NAAQS, for any
criteria pollutant or its precursors, allocated to highway and transit
vehicle use and emissions.
National ambient air quality standards (NAAQS) are those standards
established pursuant to section 109 of the CAA.
[[Page 545]]
NEPA means the National Environmental Policy Act of 1969, as amended
(42 U.S.C. 4321 et seq.).
NEPA process completion, for the purposes of this subpart, with
respect to FHWA or FTA, means the point at which there is a specific
action to make a determination that a project is categorically excluded,
to make a Finding of No Significant Impact, or to issue a record of
decision on a Final Environmental Impact Statement under NEPA.
Nonattainment area means any geographic region of the United States
which has been designated as nonattainment under section 107 of the CAA
for any pollutant for which a national ambient air quality standard
exists.
Project means a highway project or transit project.
Protective finding means a determination by EPA that a submitted
control strategy implementation plan revision contains adopted control
measures or written commitments to adopt enforceable control measures
that fully satisfy the emissions reductions requirements relevant to the
statutory provision for which the implementation plan revision was
submitted, such as reasonable further progress or attainment.
Recipient of funds designated under title 23 U.S.C. or the Federal
Transit Laws means any agency at any level of State, county, city, or
regional government that routinely receives title 23 U.S.C. or Federal
Transit Laws funds to construct FHWA/FTA projects, operate FHWA/FTA
projects or equipment, purchase equipment, or undertake other services
or operations via contracts or agreements. This definition does not
include private landowners or developers, or contractors or entities
that are only paid for services or products created by their own
employees.
Regionally significant project means a transportation project (other
than an exempt project) that is on a facility which serves regional
transportation needs (such as access to and from the area outside of the
region, major activity centers in the region, major planned developments
such as new retail malls, sports complexes, etc., or transportation
terminals as well as most terminals themselves) and would normally be
included in the modeling of a metropolitan area's transportation
network, including at a minimum all principal arterial highways and all
fixed guideway transit facilities that offer an alternative to regional
highway travel.
Safety margin means the amount by which the total projected
emissions from all sources of a given pollutant are less than the total
emissions that would satisfy the applicable requirement for reasonable
further progress, attainment, or maintenance.
Standard means a national ambient air quality standard.
Transit is mass transportation by bus, rail, or other conveyance
which provides general or special service to the public on a regular and
continuing basis. It does not include school buses or charter or
sightseeing services.
Transit project is an undertaking to implement or modify a transit
facility or transit-related program; purchase transit vehicles or
equipment; or provide financial assistance for transit operations. It
does not include actions that are solely within the jurisdiction of
local transit agencies, such as changes in routes, schedules, or fares.
It may consist of several phases. For analytical purposes, it must be
defined inclusively enough to:
(1) Connect logical termini and be of sufficient length to address
environmental matters on a broad scope;
(2) Have independent utility or independent significance, i.e., be a
reasonable expenditure even if no additional transportation improvements
in the area are made; and
(3) Not restrict consideration of alternatives for other reasonably
foreseeable transportation improvements.
Transportation control measure (TCM) is any measure that is
specifically identified and committed to in the applicable
implementation plan that is either one of the types listed in section
108 of the CAA, or any other measure for the purpose of reducing
emissions or concentrations of air pollutants from transportation
sources by reducing vehicle use or changing traffic flow or congestion
conditions. Notwithstanding the first sentence of this definition,
vehicle technology-based, fuel-
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based, and maintenance-based measures which control the emissions from
vehicles under fixed traffic conditions are not TCMs for the purposes of
this subpart.
Transportation improvement program (TIP) means a staged, multiyear,
intermodal program of transportation projects covering a metropolitan
planning area which is consistent with the metropolitan transportation
plan, and developed pursuant to 23 CFR part 450.
Transportation plan means the official intermodal metropolitan
transportation plan that is developed through the metropolitan planning
process for the metropolitan planning area, developed pursuant to 23 CFR
part 450.
Transportation project is a highway project or a transit project.
Written commitment for the purposes of this subpart means a written
commitment that includes a description of the action to be taken; a
schedule for the completion of the action; a demonstration that funding
necessary to implement the action has been authorized by the
appropriating or authorizing body; and an acknowledgment that the
commitment is an enforceable obligation under the applicable
implementation plan.
Effective Date Note: At 69 FR 44072, July 1, 2004, Sec. 93.101 was
amended by adding, in alphabetical order, new definitions for ``1-hour
ozone NAAQS,'' ``8-hour ozone NAAQS,'' ``Donut areas,'' ``Isolated rural
nonattainment and maintenance areas,'' and ``Limited maintenance plan,''
and by revising definitions for ``Control strategy implementation plan
revision'' and ``Milestone'', effective Aug. 2, 2004. For the
convenience of the user, the added and revised text is set forth as
follows:
Sec. 93.101 Definitions.
* * * * *
1-hour ozone NAAQS means the 1-hour ozone national ambient air
quality standard codified at 40 CFR 50.9.
* * * * *
8-hour ozone NAAQS means the 8-hour ozone national ambient air
quality standard codified at 40 CFR 50.10.
* * * * *
Control strategy implementation plan revision is the implementation
plan which contains specific strategies for controlling the emissions of
and reducing ambient levels of pollutants in order to satisfy CAA
requirements for demonstrations of reasonable further progress and
attainment (including implementation plan revisions submitted to satisfy
CAA sections 172(c), 182(b)(1), 182(c)(2)(A), 182(c)(2)(B), 187(a)(7),
187(g), 189(a)(1)(B), 189(b)(1)(A), and 189(d); sections 192(a) and
192(b), for nitrogen dioxide; and any other applicable CAA provision
requiring a demonstration of reasonable further progress or attainment).
* * * * *
Donut areas are geographic areas outside a metropolitan planning
area boundary, but inside the boundary of a nonattainment or maintenance
area that contains any part of a metropolitan area(s). These areas are
not isolated rural nonattainment and maintenance areas.
* * * * *
Isolated rural nonattainment and maintenance areas are areas that do
not contain or are not part of any metropolitan planning area as
designated under the transportation planning regulations. Isolated rural
areas do not have Federally required metropolitan transportation plans
or TIPs and do not have projects that are part of the emissions analysis
of any MPO's metropolitan transportation plan or TIP. Projects in such
areas are instead included in statewide transportation improvement
programs. These areas are not donut areas.
* * * * *
Limited maintenance plan is a maintenance plan that EPA has
determined meets EPA's limited maintenance plan policy criteria for a
given NAAQS and pollutant. To qualify for a limited maintenance plan,
for example, an area must have a design value that is significantly
below a given NAAQS, and it must be reasonable to expect that a NAAQS
violation will not result from any level of future motor vehicle
emissions growth.
* * * * *
Milestone has the meaning given in CAA sections 182(g)(1) and 189(c)
for serious and above ozone nonattainment areas and PM<INF>10</INF>
nonattainment areas, respectively. For all other nonattainment areas, a
milestone consists of an emissions level and the date on which that
level is to be achieved as required by the applicable CAA provision for
reasonable further progress towards attainment.
* * * * *
[[Page 547]]
Sec. 93.102 Applicability.
(a) Action applicability.
(1) Except as provided for in paragraph (c) of this section or Sec.
93.126, conformity determinations are required for:
(i) The adoption, acceptance, approval or support of transportation
plans and transportation plan amendments developed pursuant to 23 CFR
part 450 or 49 CFR part 613 by an MPO or DOT;
(ii) The adoption, acceptance, approval or support of TIPs and TIP
amendments developed pursuant to 23 CFR part 450 or 49 CFR part 613 by
an MPO or DOT; and
(iii) The approval, funding, or implementation of FHWA/FTA projects.
(2) Conformity determinations are not required under this subpart
for individual projects which are not FHWA/FTA projects. However, Sec.
93.121 applies to such projects if they are regionally significant.
(b) Geographic applicability. The provisions of this subpart shall
apply in all nonattainment and maintenance areas for transportation-
related criteria pollutants for which the area is designated
nonattainment or has a maintenance plan.
(1) The provisions of this subpart apply with respect to emissions
of the following criteria pollutants: ozone, carbon monoxide (CO),
nitrogen dioxide (NO<INF>2</INF>), and particles with an aerodynamic
diameter less than or equal to a nominal 10 micrometers
(PM<INF>10</INF>).
(2) The provisions of this subpart apply with respect to emissions
of the following precursor pollutants:
(i) Volatile organic compounds (VOC) and nitrogen oxides
(NO<INF>X</INF>) in ozone areas;
(ii) NO<INF>X</INF> in NO<INF>2</INF> areas; and
(iii) VOC, NO<INF>X,</INF> and PM<INF>10</INF> in PM<INF>10</INF>
areas if the EPA Regional Administrator or the director of the State air
agency has made a finding that transportation-related precursor
emissions within the nonattainment area are a significant contributor to
the PM<INF>10</INF> nonattainment problem and has so notified the MPO
and DOT, or if the applicable implementation plan (or implementation
plan submission) establishes a budget for such emissions as part of the
reasonable further progress, attainment or maintenance strategy.
(3) The provisions of this subpart apply to maintenance areas for 20
years from the date EPA approves the area's request under section 107(d)
of the CAA for redesignation to attainment, unless the applicable
implementation plan specifies that the provisions of this subpart shall
apply for more than 20 years.
(c) Limitations. (1) Projects subject to this subpart for which the
NEPA process and a conformity determination have been completed by DOT
may proceed toward implementation without further conformity
determinations unless more than three years have elapsed since the most
recent major step (NEPA process completion; start of final design;
acquisition of a significant portion of the right-of-way; or approval of
the plans, specifications and estimates) occurred. All phases of such
projects which were considered in the conformity determination are also
included, if those phases were for the purpose of funding final design,
right-of-way acquisition, construction, or any combination of these
phases.
(2) A new conformity determination for the project will be required
if there is a significant change in project design concept and scope, if
a supplemental environmental document for air quality purposes is
initiated, or if three years have elapsed since the most recent major
step to advance the project occurred.
(d) Grace period for new nonattainment areas. For areas or portions
of areas which have been continuously designated attainment or not
designated for any standard for ozone, CO, PM<INF>10</INF> or
NO<INF>2</INF> since 1990 and are subsequently redesignated to
nonattainment or designated nonattainment for any standard for any of
these pollutants, the provisions of this subpart shall not apply with
respect to that standard for 12 months following the effective date of
final designation to nonattainment for each standard for such pollutant.
[62 FR 43801, Aug. 15, 1997, as amended at 65 FR 18918, Apr. 10, 2000;
67 FR 50817, Aug. 6, 2002]
Effective Date Note: At 69 FR 44072, July 1, 2004, Sec. 93.102 was
amended by revising paragraphs (b)(1), (b)(2) introductory text and
[[Page 548]]
(b)(2)(iii);redesignating paragraph (b)(3) as paragraph (b)(4); adding a
new paragraph (b)(3); revising paragraph (c); and revising paragraph
(d), effective Aug. 2, 2004. For the convenience of the user, the added
and revised text is set forth as follows:
Sec. 93.102 Applicability.
* * * * *
(b) * * *
(1) The provisions of this subpart apply with respect to emissions
of the following criteria pollutants: ozone, carbon monoxide (CO),
nitrogen dioxide (NO<INF>2</INF>), particles with an aerodynamic
diameter less than or equal to a nominal 10 micrometers
(PM<INF>10</INF>); and particles with an aerodynamic diameter less than
or equal to a nominal 2.5 micrometers (PM<INF>2.5</INF>).
(2) The provisions of this subpart also apply with respect to
emissions of the following precursor pollutants:
* * * * *
(iii) VOC and/or NO<INF>X</INF> in PM<INF>10</INF> areas if the EPA
Regional Administrator or the director of the State air agency has made
a finding that transportation-related emissions of one or both of these
precursors within the nonattainment area are a significant contributor
to the PM<INF>10</INF> nonattainment problem and has so notified the MPO
and DOT, or if the applicable implementation plan (or implementation
plan submission) establishes an approved (or adequate) budget for such
emissions as part of the reasonable further progress, attainment or
maintenance strategy.
(3) The provisions of this subpart apply to PM<INF>2.5</INF>
nonattainment and maintenance areas with respect to PM<INF>2.5</INF>
from re-entrained road dust if the EPA Regional Administrator or the
director of the State air agency has made a finding that re-entrained
road dust emissions within the area are a significant contributor to the
PM<INF>2.5</INF> nonattainment problem and has so notified the MPO and
DOT, or if the applicable implementation plan (or implementation plan
submission) includes re-entrained road dust in the approved (or
adequate) budget as part of the reasonable further progress, attainment
or maintenance strategy. Re-entrained road dust emissions are produced
by travel on paved and unpaved roads (including emissions from anti-skid
and deicing materials).
* * * * *
(c) Limitations. In order to receive any FHWA/FTA approval or
funding actions, including NEPA approvals, for a project phase subject
to this subpart, a currently conforming transportation plan and TIP must
be in place at the time of project approval as described in Sec.
93.114, except as provided by Sec. 93.114(b).
(d) Grace period for new nonattainment areas. For areas or portions
of areas which have been continuously designated attainment or not
designated for any NAAQS for ozone, CO, PM<INF>10</INF>,
PM<INF>2.5</INF> or NO<INF>2</INF> since 1990 and are subsequently
redesignated to nonattainment or designated nonattainment for any NAAQS
for any of these pollutants, the provisions of this subpart shall not
apply with respect to that NAAQS for 12 months following the effective
date of final designation to nonattainment for each NAAQS for such
pollutant.
Sec. 93.103 Priority.
When assisting or approving any action with air quality-related
consequences, FHWA and FTA shall give priority to the implementation of
those transportation portions of an applicable implementation plan
prepared to attain and maintain the NAAQS. This priority shall be
consistent with statutory requirements for allocation of funds among
States or other jurisdictions.
Sec. 93.104 Frequency of conformity determinations.
(a) Conformity determinations and conformity redeterminations for
transportation plans, TIPs, and FHWA/FTA projects must be made according
to the requirements of this section and the applicable implementation
plan.
(b) Frequency of conformity determinations for transportation plans.
(1) Each new transportation plan must be demonstrated to conform before
the transportation plan is approved by the MPO or accepted by DOT.
(2) All transportation plan revisions must be found to conform
before the transportation plan revisions are approved by the MPO or
accepted by DOT, unless the revision merely adds or deletes exempt
projects listed in Sec. 93.126 or Sec. 93.127. The conformity
determination must be based on the transportation plan and the revision
taken as a whole.
(3) The MPO and DOT must determine the conformity of the
transportation plan no less frequently than every three years. If more
than three years elapse after DOT's conformity determination without the
MPO and DOT determining conformity of the
[[Page 549]]
transportation plan, the existing conformity determination will lapse.
(c) Frequency of conformity determinations for transportation
improvement programs. (1) A new TIP must be demonstrated to conform
before the TIP is approved by the MPO or accepted by DOT.
(2) A TIP amendment requires a new conformity determination for the
entire TIP before the amendment is approved by the MPO or accepted by
DOT, unless the amendment merely adds or deletes exempt projects listed
in Sec. 93.126 or Sec. 93.127.
(3) The MPO and DOT must determine the conformity of the TIP no less
frequently than every three years. If more than three years elapse after
DOT's conformity determination without the MPO and DOT determining
conformity of the TIP, the existing conformity determination will lapse.
(4) After an MPO adopts a new or revised transportation plan,
conformity of the TIP must be redetermined by the MPO and DOT within six
months from the date of DOT's conformity determination for the
transportation plan, unless the new or revised plan merely adds or
deletes exempt projects listed in Sec. Sec. 93.126 and 93.127.
Otherwise, the existing conformity determination for the TIP will lapse.
(d) Projects. FHWA/FTA projects must be found to conform before they
are adopted, accepted, approved, or funded. Conformity must be
redetermined for any FHWA/FTA project if three years have elapsed since
the most recent major step to advance the project (NEPA process
completion; start of final design; acquisition of a significant portion
of the right-of-way; or approval of the plans, specifications and
estimates) occurred.
(e) Triggers for transportation plan and TIP conformity
determinations. Conformity of existing transportation plans and TIPs
must be redetermined within 18 months of the following, or the existing
conformity determination will lapse, and no new project-level conformity
determinations may be made until conformity of the transportation plan
and TIP has been determined by the MPO and DOT:
(1) November 24, 1993;
(2) The effective date of EPA's finding that motor vehicle emissions
budgets from an initially submitted control strategy implementation plan
or maintenance plan are adequate pursuant to Sec. 93.118(e) and can be
used for transportation conformity purposes;
(3) EPA approval of a control strategy implementation plan revision
or maintenance plan which establishes or revises a motor vehicle
emissions budget;
(4) EPA approval of an implementation plan revision that adds,
deletes, or changes TCMs; and
(5) EPA promulgation of an implementation plan which establishes or
revises a motor vehicle emissions budget or adds, deletes, or changes
TCMs.
[62 FR 43801, Aug. 15, 1997, as amended at 67 FR 50817, Aug. 6, 2002]
Effective Date Note: At 69 FR 44072, July 1, 2004, Sec. 93.104 was
amended by revising the first sentence in paragraph (b)(3); revising the
first sentence in paragraph (c)(3), and removing paragraph (c)(4);
revising paragraph (d); and removing paragraphs (e)(1) and (e)(4) and
redesignating paragraphs (e)(2), (e)(3) and (e)(5) as paragraphs (e)(1),
(e)(2) and (e)(3), and by revising newly redesignated paragraphs (e)(2)
and (e)(3), effective Aug. 2, 2004. For the convenience of the user, the
revised text is set forth as follows:
Sec. 93.104 Frequency of conformity determinations.
* * * * *
(b) * * *
(3) The MPO and DOT must determine the conformity of the
transportation plan (including a new regional emissions analysis) no
less frequently than every three years. * * *
(c) * * *
(3) The MPO and DOT must determine the conformity of the TIP
(including a new regional emissions analysis) no less frequently than
every three years. * * *
(d) Projects. FHWA/FTA projects must be found to conform before they
are adopted, accepted, approved, or funded. Conformity must be
redetermined for any FHWA/FTA project if one of the following occurs: a
significant change in the project's design concept and scope; three
years elapse since the most recent major step to advance the project; or
initiation of a supplemental environmental document for air quality
purposes. Major steps include NEPA process completion; start of final
design; acquisition of a significant portion of the right-of-way;
[[Page 550]]
and, construction (including Federal approval of plans, specifications
and estimates).
(e) * * *
(2) The effective date of EPA approval of a control strategy
implementation plan revision or maintenance plan which establishes or
revises a motor vehicle emissions budget if that budget has not yet been
used in a conformity determination prior to approval; and
(3) The effective date of EPA promulgation of an implementation plan
which establishes or revises a motor vehicle emissions budget.
Sec. 93.105 Consultation.
(a) General. The implementation plan revision required under Sec.
51.390 of this chapter shall include procedures for interagency
consultation (Federal, State, and local), resolution of conflicts, and
public consultation as described in paragraphs (a) through (e) of this
section. Public consultation procedures will be developed in accordance
with the requirements for public involvement in 23 CFR part 450.
(1) The implementation plan revision shall include procedures to be
undertaken by MPOs, State departments of transportation, and DOT with
State and local air quality agencies and EPA before making conformity
determinations, and by State and local air agencies and EPA with MPOs,
State departments of transportation, and DOT in developing applicable
implementation plans.
(2) Before EPA approves the conformity implementation plan revision
required by Sec. 51.390 of this chapter, MPOs and State departments of
transportation must provide reasonable opportunity for consultation with
State air agencies, local air quality and transportation agencies, DOT,
and EPA, including consultation on the issues described in paragraph
(c)(1) of this section, before making conformity determinations.
(b) Interagency consultation procedures: General factors. (1) States
shall provide well-defined consultation procedures in the implementation
plan whereby representatives of the MPOs, State and local air quality
planning agencies, State and local transportation agencies, and other
organizations with responsibilities for developing, submitting, or
implementing provisions of an implementation plan required by the CAA
must consult with each other and with local or regional offices of EPA,
FHWA, and FTA on the development of the implementation plan, the
transportation plan, the TIP, and associated conformity determinations.
(2) Interagency consultation procedures shall include at a minimum
the following general factors and the specific processes in paragraph
(c) of this section:
(i) The roles and responsibilities assigned to each agency at each
stage in the implementation plan development process and the
transportation planning process, including technical meetings;
(ii) The organizational level of regular consultation;
(iii) A process for circulating (or providing ready access to) draft
documents and supporting materials for comment before formal adoption or
publication;
(iv) The frequency of, or process for convening, consultation
meetings and responsibilities for establishing meeting agendas;
(v) A process for responding to the significant comments of involved
agencies; and
(vi) A process for the development of a list of the TCMs which are
in the applicable implementation plan.
(c) Interagency consultation procedures: Specific processes.
Interagency consultation procedures shall also include the following
specific processes:
(1) A process involving the MPO, State and local air quality
planning agencies, State and local transportation agencies, EPA, and DOT
for the following:
(i) Evaluating and choosing a model (or models) and associated
methods and assumptions to be used in hot-spot analyses and regional
emissions analyses;
(ii) Determining which minor arterials and other transportation
projects should be considered ``regionally significant'' for the
purposes of regional emissions analysis (in addition to those
functionally classified as principal arterial or higher or fixed
guideway systems or extensions that offer an alternative to regional
highway travel), and which projects should be considered to have a
significant change in design
[[Page 551]]
concept and scope from the transportation plan or TIP;
(iii) Evaluating whether projects otherwise exempted from meeting
the requirements of this subpart (see Sec. Sec. 93.126 and 93.127)
should be treated as non-exempt in cases where potential adverse
emissions impacts may exist for any reason;
(iv) Making a determination, as required by Sec. 93.113(c)(1),
whether past obstacles to implementation of TCMs which are behind the
schedule established in the applicable implementation plan have been
identified and are being overcome, and whether State and local agencies
with influence over approvals or funding for TCMs are giving maximum
priority to approval or funding for TCMs. This process shall also
consider whether delays in TCM implementation necessitate revisions to
the applicable implementation plan to remove TCMs or substitute TCMs or
other emission reduction measures;
(v) Identifying, as required by Sec. 93.123(b), projects located at
sites in PM<INF>10</INF> nonattainment areas which have vehicle and
roadway emission and dispersion characteristics which are essentially
identical to those at sites which have violations verified by
monitoring, and therefore require quantitative PM<INF>10</INF> hot-spot
analysis;
(vi) Notification of transportation plan or TIP revisions or
amendments which merely add or delete exempt projects listed in Sec.
93.126 or Sec. 93.127; and
(vii) Choosing conformity tests and methodologies for isolated rural
nonattainment and maintenance areas, as required by Sec.
93.109(g)(2)(iii).
(2) A process involving the MPO and State and local air quality
planning agencies and transportation agencies for the following:
(i) Evaluating events which will trigger new conformity
determinations in addition to those triggering events established in
Sec. 93.104; and
(ii) Consulting on emissions analysis for transportation activities
which cross the borders of MPOs or nonattainment areas or air basins.
(3) Where the metropolitan planning area does not include the entire
nonattainment or maintenance area, a process involving the MPO and the
State department of transportation for cooperative planning and analysis
for purposes of determining conformity of all projects outside the
metropolitan area and within the nonattainment or maintenance area.
(4) A process to ensure that plans for construction of regionally
significant projects which are not FHWA/FTA projects (including projects
for which alternative locations, design concept and scope, or the no-
build option are still being considered), including those by recipients
of funds designated under title 23 U.S.C. or the Federal Transit Laws,
are disclosed to the MPO on a regular basis, and to ensure that any
changes to those plans are immediately disclosed.
(5) A process involving the MPO and other recipients of funds
designated under title 23 U.S.C. or the Federal Transit Laws for
assuming the location and design concept and scope of projects which are
disclosed to the MPO as required by paragraph (c)(4) of this section but
whose sponsors have not yet decided these features, in sufficient detail
to perform the regional emissions analysis according to the requirements
of Sec. 93.122.
(6) A process for consulting on the design, schedule, and funding of
research and data collection efforts and regional transportation model
development by the MPO (e.g., household/ travel transportation surveys).
(7) A process for providing final documents (including applicable
implementation plans and implementation plan revisions) and supporting
information to each agency after approval or adoption. This process is
applicable to all agencies described in paragraph (a)(1) of this
section, including Federal agencies.
(d) Resolving conflicts. Conflicts among State agencies or between
State agencies and an MPO shall be escalated to the Governor if they
cannot be resolved by the heads of the involved agencies. The State air
agency has 14 calendar days to appeal to the Governor after the State
DOT or MPO has notified the State air agency head of the resolution of
his or her comments. The implementation plan revision required by Sec.
51.390 of this chapter shall define the procedures for starting the 14-
day clock. If the State air agency
[[Page 552]]
appeals to the Governor, the final conformity determination must have
the concurrence of the Governor. If the State air agency does not appeal
to the Governor within 14 days, the MPO or State department of
transportation may proceed with the final conformity determination. The
Governor may delegate his or her role in this process, but not to the
head or staff of the State or local air agency, State department of
transportation, State transportation commission or board, or an MPO.
(e) Public consultation procedures. Affected agencies making
conformity determinations on transportation plans, programs, and
projects shall establish a proactive public involvement process which
provides opportunity for public review and comment by, at a minimum,
providing reasonable public access to technical and policy information
considered by the agency at the beginning of the public comment period
and prior to taking formal action on a conformity determination for all
transportation plans and TIPs, consistent with these requirements and
those of 23 CFR 450.316(b). Any charges imposed for public inspection
and copying should be consistent with the fee schedule contained in 49
CFR 7.95. In addition, these agencies must specifically address in
writing all public comments that known plans for a regionally
significant project which is not receiving FHWA or FTA funding or
approval have not been properly reflected in the emissions analysis
supporting a proposed conformity finding for a transportation plan or
TIP. These agencies shall also provide opportunity for public
involvement in conformity determinations for projects where otherwise
required by law.
Effective Date Note: At 69 FR 44073, July 1, 2004, Sec. 93.105 was
amended by revising the reference ``Sec. 93.109(g)(2)(iii)'' to read
``Sec. 93.109(l)(2)(iii).'', effective Aug. 2, 2004.
Sec. 93.106 Content of transportation plans.
(a) Transportation plans adopted after January 1, 1997 in serious,
severe, or extreme ozone nonattainment areas and in serious CO
nonattainment areas. If the metropolitan planning area contains an
urbanized area population greater than 200,000, the transportation plan
must specifically describe the transportation system envisioned for
certain future years which shall be called horizon years.
(1) The agency or organization developing the transportation plan
may choose any years to be horizon years, subject to the following
restrictions:
(i) Horizon years may be no more than 10 years apart;
(ii) The first horizon year may be no more than 10 years from the
base year used to validate the transportation demand planning model;
(iii) If the attainment year is in the time span of the
transportation plan, the attainment year must be a horizon year; and
(iv) The last horizon year must be the last year of the
transportation plan's forecast period.
(2) For these horizon years:
(i) The transportation plan shall quantify and document the
demographic and employment factors influencing expected transportation
demand, including land use forecasts, in accordance with implementation
plan provisions and the consultation requirements specified by Sec.
93.105;
(ii) The highway and transit system shall be described in terms of
the regionally significant additions or modifications to the existing
transportation network which the transportation plan envisions to be
operational in the horizon years. Additions and modifications to the
highway network shall be sufficiently identified to indicate
intersections with existing regionally significant facilities, and to
determine their effect on route options between transportation analysis
zones. Each added or modified highway segment shall also be sufficiently
identified in terms of its design concept and design scope to allow
modeling of travel times under various traffic volumes, consistent with
the modeling methods for area-wide transportation analysis in use by the
MPO. Transit facilities, equipment, and services envisioned for the
future shall be identified in terms of design concept, design scope, and
operating policies that are sufficient for modeling of their transit
ridership. Additions and modifications to the transportation network
shall be described
[[Page 553]]
sufficiently to show that there is a reasonable relationship between
expected land use and the envisioned transportation system; and
(iii) Other future transportation policies, requirements, services,
and activities, including intermodal activities, shall be described.
(b) Moderate areas reclassified to serious. Ozone or CO
nonattainment areas which are reclassified from moderate to serious and
have an urbanized population greater than 200,000 must meet the
requirements of paragraph (a) of this section within two years from the
date of reclassification.
(c) Transportation plans for other areas. Transportation plans for
other areas must meet the requirements of paragraph (a) of this section
at least to the extent it has been the previous practice of the MPO to
prepare plans which meet those requirements. Otherwise, the
transportation system envisioned for the future must be sufficiently
described within the transportation plans so that a conformity
determination can be made according to the criteria and procedures of
Sec. Sec. 93.109 through 93.119.
(d) Savings. The requirements of this section supplement other
requirements of applicable law or regulation governing the format or
content of transportation plans.
Effective Date Note: At 69 FR 44073, July 1, 2004, Sec. 93.106 was
amended by revising paragraph (b), effective Aug. 2, 2004. For the
convenience of the user, the revised text is set forth as follows:
Sec. 93.106 Content of transportation plans.
* * * * *
(b) Two-year grace period for transportation plan requirements in
certain ozone and CO areas. The requirements of paragraph (a) of this
section apply to such areas or portions of such areas that have
previously not been required to meet these requirements for any existing
NAAQS two years from the following:
(1) The effective date of EPA's reclassification of an ozone or CO
nonattainment area that has an urbanized area population greater than
200,000 to serious or above;
(2) The official notice by the Census Bureau that determines the
urbanized area population of a serious or above ozone or CO
nonattainment area to be greater than 200,000; or,
(3) The effective date of EPA's action that classifies a newly
designated ozone or CO nonattainment area that has an urbanized area
population greater than 200,000 as serious or above.
* * * * *
Sec. 93.107 Relationship of transportation plan and TIP conformity
with the NEPA process.
The degree of specificity required in the transportation plan and
the specific travel network assumed for air quality modeling do not
preclude the consideration of alternatives in the NEPA process or other
project development studies. Should the NEPA process result in a project
with design concept and scope significantly different from that in the
transportation plan or TIP, the project must meet the criteria in
Sec. Sec. 93.109 through 93.119 for projects not from a TIP before NEPA
process completion.
Sec. 93.108 Fiscal constraints for transportation plans and TIPs.
Transportation plans and TIPs must be fiscally constrained
consistent with DOT's metropolitan planning regulations at 23 CFR part
450 in order to be found in conformity.
Sec. 93.109 Criteria and procedures for determining conformity of
transportation plans, programs, and projects: General.
(a) In order for each transportation plan, program, and FHWA/FTA
project to be found to conform, the MPO and DOT must demonstrate that
the applicable criteria and procedures in this subpart are satisfied,
and the MPO and DOT must comply with all applicable conformity
requirements of implementation plans and of court orders for the area
which pertain specifically to conformity. The criteria for making
conformity determinations differ based on the action under review
(transportation plans, TIPs, and FHWA/FTA projects), the relevant
pollutant(s), and the status of the implementation plan.
(b) Table 1 in this paragraph indicates the criteria and procedures
in Sec. Sec. 93.110 through 93.119 which apply for transportation
plans, TIPs, and FHWA/FTA projects. Paragraphs (c) through (f) of this
section explain when the
[[Page 554]]
budget, emission reduction, and hot spot tests are required for each
pollutant. Paragraph (g) of this section addresses isolated rural
nonattainment and maintenance areas. Table 1 follows:
Table 1--Conformity Criteria
------------------------------------------------------------------------
------------------------------------------------------------------------
All Actions at all times:
Sec. 93.110 Latest planning assumptions
Sec. 93.111 Latest emissions model
Sec. 93.112 Consultation
Transportation Plan:
Sec. 93.113(b) TCMs
Sec. 93.118 or Sec. 93.119 Emissions budget or Emission
reduction
TIP:
Sec. 93.113(c) TCMs
Sec. 93.118 or Sec. 93.119 Emissions budget or Emission
reduction
Project (From a Conforming Plan and
TIP):
Sec. 93.114 Currently conforming plan and
TIP
Sec. 93.115 Project from a conforming plan
and TIP
Sec. 93.116 CO and PM10 hot spots
Sec. 93.117 PM10 control measures
Project (Not From a Conforming Plan and
TIP):
Sec. 93.113(d) TCMs
Sec. 93.114 Currently conforming plan and
TIP
Sec. 93.116 CO and PM10 hot spots
Sec. 93.117 PM10 control measures
Sec. 93.118 or Sec. 93.119 Emissions budget or Emission
reduction
------------------------------------------------------------------------
(c) Ozone nonattainment and maintenance areas. In addition to the
criteria listed in Table 1 in paragraph (b) of this section that are
required to be satisfied at all times, in ozone nonattainment and
maintenance areas conformity determinations must include a demonstration
that the budget and/or emission reduction tests are satisfied as
described in the following:
(1) In ozone nonattainment and maintenance areas the budget test
must be satisfied as required by Sec. 93.118 for conformity
determinations made:
(i) 45 days after a control strategy implementation plan revision or
maintenance plan has been submitted to EPA, unless EPA has declared the
motor vehicle emissions budget inadequate for transportation conformity
purposes; or
(ii) After EPA has declared that the motor vehicle emissions budget
in a submitted control strategy implementation plan revision or
maintenance plan is adequate for transportation conformity purposes.
(2) In ozone nonattainment areas that are required to submit a
control strategy implementation plan revision (usually moderate and
above areas), the emission reduction tests must be satisfied as required
by Sec. 93.119 for conformity determinations made:
(i) During the first 45 days after a control strategy implementation
plan revision or maintenance plan has been submitted to EPA, unless EPA
has declared a motor vehicle emissions budget adequate for
transportation conformity purposes; or
(ii) If EPA has declared the motor vehicle emissions budget in a
submitted control strategy implementation plan revision or maintenance
plan inadequate for transportation conformity purposes, and there is no
previously established motor vehicle emissions budget in the approved
implementation plan or a previously submitted control strategy
implementation plan revision or maintenance plan.
(3) An ozone nonattainment area must satisfy the emission reduction
test for NO<INF>X</INF>, as required by Sec. 93.119, if the
implementation plan or plan submission that is applicable for the
purposes of conformity determinations is a 15% plan or Phase I
attainment demonstration that does not include a motor vehicle emissions
budget for NO<INF>X</INF>. The implementation plan will be considered to
establish a motor vehicle emissions budget for NO<INF>X</INF> if the
implementation plan or plan submission contains an explicit
NO<INF>X</INF> motor vehicle emissions budget that is intended to act as
a ceiling on future NO<INF>X</INF> emissions, and the NO<INF>X</INF>
motor vehicle emissions budget is a net reduction from NO<INF>X</INF>
emissions levels in 1990.
(4) Ozone nonattainment areas that have not submitted a maintenance
plan and that are not required to submit a control strategy
implementation plan revision (usually marginal and below areas) must
satisfy one of the following requirements:
(i) The emission reduction tests required by Sec. 93.119; or
(ii) The State shall submit to EPA an implementation plan revision
that contains motor vehicle emissions budget(s) and an attainment
demonstration,
[[Page 555]]
and the budget test required by Sec. 93.118 must be satisfied using the
submitted motor vehicle emissions budget(s) (as described in paragraph
(c)(1) of this section).
(5) Notwithstanding paragraphs (c)(1) and (c)(2) of this section,
moderate and above ozone nonattainment areas with three years of clean
data that have not submitted a maintenance plan and that EPA has
determined are not subject to the Clean Air Act reasonable further
progress and attainment demonstration requirements must satisfy one of
the following requirements:
(i) The emission reduction tests as required by Sec. 93.119;
(ii) The budget test as required by Sec. 93.118, using the motor
vehicle emissions budgets in the submitted control strategy
implementation plan (subject to the timing requirements of paragraph
(c)(1) of this section); or
(iii) The budget test as required by Sec. 93.118, using the motor
vehicle emissions of ozone precursors in the most recent year of clean
data as motor vehicle emissions budgets, if such budgets are established
by the EPA rulemaking that determines that the area has clean data.
(d) CO nonattainment and maintenance areas. In addition to the
criteria listed in Table 1 in paragraph (b) of this section that are
required to be satisfied at all times, in CO nonattainment and
maintenance areas conformity determinations must include a demonstration
that the hot spot, budget and/or emission reduction tests are satisfied
as described in the following:
(1) FHWA/FTA projects in CO nonattainment or maintenance areas must
satisfy the hot spot test required by Sec. 93.116(a) at all times.
Until a CO attainment demonstration or maintenance plan is approved by
EPA, FHWA/FTA projects must also satisfy the hot spot test required by
Sec. 93.116(b).
(2) In CO nonattainment and maintenance areas the budget test must
be satisfied as required by Sec. 93.118 for conformity determinations
made:
(i) 45 days after a control strategy implementation plan revision or
maintenance plan has been submitted to EPA, unless EPA has declared the
motor vehicle emissions budget inadequate for transportation conformity
purposes; or
(ii) After EPA has declared that the motor vehicle emissions budget
in a submitted control strategy implementation plan revision or
maintenance plan is adequate for transportation conformity purposes.
(3) Except as provided in paragraph (d)(4) of this section, in CO
nonattainment areas the emission reduction tests must be satisfied as
required by Sec. 93.119 for conformity determinations made:
(i) During the first 45 days after a control strategy implementation
plan revision or maintenance plan has been submitted to EPA, unless EPA
has declared a motor vehicle emissions budget adequate for
transportation conformity purposes; or
(ii) If EPA has declared the motor vehicle emissions budget in a
submitted control strategy implementation plan revision or maintenance
plan inadequate for transportation conformity purposes, and there is no
previously established motor vehicle emissions budget in the approved
implementation plan or a previously submitted control strategy
implementation plan revision or maintenance plan.
(4) CO nonattainment areas that have not submitted a maintenance
plan and that are not required to submit an attainment demonstration
(e.g., moderate CO areas with a design value of 12.7 ppm or less or not
classified CO areas) must satisfy one of the following requirements:
(i) The emission reduction tests required by Sec. 93.119; or
(ii) The State shall submit to EPA an implementation plan revision
that contains motor vehicle emissions budget(s) and an attainment
demonstration, and the budget test required by Sec. 93.118 must be
satisfied using the submitted motor vehicle emissions budget(s) (as
described in paragraph (d)(2) of this section).
(e) PM10 nonattainment and maintenance areas. In addition to the
criteria listed in Table 1 in paragraph (b) of this section that are
required to be satisfied at all times, in PM<INF>10</INF> nonattainment
and maintenance areas conformity determinations must include a
[[Page 556]]
demonstration that the hot spot, budget and/or emission reduction tests
are satisfied as described in the following:
(1) FHWA/FTA projects in PM<INF>10</INF> nonattainment or
maintenance areas must satisfy the hot spot test required by Sec.
93.116(a).
(2) In PM<INF>10</INF> nonattainment and maintenance areas the
budget test must be satisfied as required by Sec. 93.118 for conformity
determinations made:
(i) 45 days after a control strategy implementation plan revision or
maintenance plan has been submitted to EPA, unless EPA has declared the
motor vehicle emissions budget inadequate for transportation conformity
purposes; or
(ii) After EPA has declared that the motor vehicle emissions budget
in a submitted control strategy implementation plan revision or
maintenance plan is adequate for transportation conformity purposes.
(3) In PM<INF>10</INF> nonattainment areas the emission reduction
tests must be satisfied as required by Sec. 93.119 for conformity
determinations made:
(i) During the first 45 days after a control strategy implementation
plan revision or maintenance plan has been submitted to EPA, unless EPA
has declared a motor vehicle emissions budget adequate for
transportation conformity purposes;
(ii) If EPA has declared the motor vehicle emissions budget in a
submitted control strategy implementation plan revision or maintenance
plan inadequate for transportation conformity purposes, and there is no
previously established motor vehicle emissions budget in the approved
implementation plan or a previously submitted control strategy
implementation plan revision or maintenance plan; or
(iii) If the submitted implementation plan revision is a
demonstration of impracticability under CAA section 189(a)(1)(B)(ii) and
does not demonstrate attainment.
(f) NO2 nonattainment and maintenance areas. In addition to the
criteria listed in Table 1 in paragraph (b) of this section that are
required to be satisfied at all times, in NO<INF>2</INF> nonattainment
and maintenance areas conformity determinations must include a
demonstration that the budget and/or emission reduction tests are
satisfied as described in the following:
(1) In NO<INF>2</INF> nonattainment and maintenance areas the budget
test must be satisfied as required by Sec. 93.118 for conformity
determinations made:
(i) 45 days after a control strategy implementation plan revision or
maintenance plan has been submitted to EPA, unless EPA has declared the
motor vehicle emissions budget inadequate for transportation conformity
purposes; or
(ii) After EPA has declared that the motor vehicle emissions budget
in a submitted control strategy implementation plan revision or
maintenance plan is adequate for transportation conformity purposes.
(2) In NO<INF>2</INF> nonattainment areas the emission reduction
tests must be satisfied as required by Sec. 93.119 for conformity
determinations made:
(i) During the first 45 days after a control strategy implementation
plan revision or maintenance plan has been submitted to EPA, unless EPA
has declared a motor vehicle emissions budget adequate for
transportation conformity purposes; or
(ii) If EPA has declared the motor vehicle emissions budget in a
submitted control strategy implementation plan revision or maintenance
plan inadequate for transportation conformity purposes, and there is no
previously established motor vehicle emissions budget in the approved
implementation plan or a previously submitted control strategy
implementation plan revision or maintenance plan.
(g) Isolated rural nonattainment and maintenance areas. This
paragraph applies to any nonattainment or maintenance area (or portion
thereof) which does not have a metropolitan transportation plan or TIP
and whose projects are not part of the emissions analysis of any MPO's
metropolitan transportation plan or TIP. This paragraph does not apply
to ``donut'' areas which are outside the metropolitan planning boundary
and inside the nonattainment/maintenance area boundary.
(1) FHWA/FTA projects in all isolated rural nonattainment and
maintenance areas must satisfy the requirements of Sec. Sec. 93.110,
93.111, 93.112, 93.113(d), 93.116,
[[Page 557]]
and 93.117. Until EPA approves the control strategy implementation plan
or maintenance plan for a rural CO nonattainment or maintenance area,
FHWA/FTA projects must also satisfy the requirements of Sec. 93.116(b)
(``Localized CO and PM<INF>10</INF> violations (hot spots)'').
(2) Isolated rural nonattainment and maintenance areas are subject
to the budget and/or emission reduction tests as described in paragraphs
(c) through (f) of this section, with the following modifications:
(i) When the requirements of Sec. Sec. 93.118 and 93.119 apply to
isolated rural nonattainment and maintenance areas, references to
``transportation plan'' or ``TIP'' should be taken to mean those
projects in the statewide transportation plan or statewide TIP which are
in the rural nonattainment or maintenance area.
(ii) In isolated rural nonattainment and maintenance areas that are
subject to Sec. 93.118, FHWA/FTA projects must be consistent with motor
vehicle emissions budget(s) for the years in the timeframe of the
attainment demonstration or maintenance plan. For years after the
attainment year (if a maintenance plan has not been submitted) or after
the last year of the maintenance plan, FHWA/FTA projects must satisfy
one of the following requirements:
(A) Sec. 93.118;
(B) Sec. 93.119 (including regional emissions analysis for
NO<INF>X</INF> in all ozone nonattainment and maintenance areas,
notwithstanding Sec. 93.119(d)(2)); or
(C) As demonstrated by the air quality dispersion model or other air
quality modeling technique used in the attainment demonstration or
maintenance plan, the FHWA/FTA project, in combination with all other
regionally significant projects expected in the area in the timeframe of
the statewide transportation plan, must not cause or contribute to any
new violation of any standard in any areas; increase the frequency or
severity of any existing violation of any standard in any area; or delay
timely attainment of any standard or any required interim emission
reductions or other milestones in any area. Control measures assumed in
the analysis must be enforceable.
(iii) The choice of requirements in paragraph (g)(2)(ii) of this
section and the methodology used to meet the requirements of paragraph
(g)(2)(ii)(C) of this section must be determined through the interagency
consultation process required in Sec. 93.105(c)(1)(vii) through which
the relevant recipients of title 23 U.S.C. or Federal Transit Laws
funds, the local air quality agency, the State air quality agency, and
the State department of transportation should reach consensus about the
option and methodology selected. EPA and DOT must be consulted through
this process as well. In the event of unresolved disputes, conflicts may
be escalated to the Governor consistent with the procedure in Sec.
93.105(d), which applies for any State air agency comments on a
conformity determination.
Effective Date Note: At 69 FR 44073, July 1, 2004, Sec. 93.109 was
amended by:
a. Revising the paragraph (b) introductory text;
b. In Table 1 of paragraph (b), revising the entry for ``Sec.
93.118 or Sec. 93.119'' under ``Transportation Plan:'' and the entry
for ``Sec. 93.118 or Sec. 93.119'' under ``TIP:'', and revising the
entry for ``Sec. 93.117'' under ``Project (From a Conforming Plan and
TIP):'' and the entries for ``Sec. 93.117'' and ``Sec. 93.118 or Sec.
93.119'' under ``Project (Not From a Conforming Plan and TIP):''
c. Revising paragraph (c);
d. Redesignating paragraphs (d), (e), (f) and (g) as paragraphs (f),
(g), (h) and (l);
e. Adding new paragraphs (d), (e), (i), (j) and (k);
f. Revising newly redesignated paragraphs (f) introductory text,
(f)(2), (f)(3) and (f)(4)(i) and (ii);
g. Revising newly redesignated paragraphs (g) introductory text,
(g)(2), and (g)(3);
h. Revising newly redesignated paragraph (h); and
i. Revising newly redesignated paragraph (l)(2) introductory text;
in newly redesignated paragraph (l)(2)(ii)(B), revising ``Sec.
93.119(d)(2)'' to read ``Sec. 93.119(f)(2)'' and, in newly redesignated
paragraph (l)(2)(iii), revising ``paragraph (g)(2)(ii)'' and ``paragraph
(g)(2)(ii)(C)'' to read ``paragraph (l)(2)(ii)'' and ``paragraph
(l)(2)(ii)(C)'', respectively., effective Aug. 2, 2004. For the
convenience of the user, the added and revised text is set forth as
follows:
Sec. 93.109 Criteria and procedures for determining conformity of
transportation plans, programs, and projects: General.
* * * * *
[[Page 558]]
(b) Table 1 in this paragraph indicates the criteria and procedures
in Sec. Sec. 93.110 through 93.119 which apply for transportation
plans, TIPs, and FHWA/FTA projects. Paragraphs (c) through (i) of this
section explain when the budget, interim emissions, and hot-spot tests
are required for each pollutant and NAAQS. Paragraph (j) of this section
addresses conformity requirements for areas with approved or adequate
limited maintenance plans. Paragraph (k) of this section addresses
nonattainment and maintenance areas which EPA has determined have
insignificant motor vehicle emissions. Paragraph (l) of this section
addresses isolated rural nonattainment and maintenance areas. Table 1
follows:
Table 1.--Conformity Criteria
------------------------------------------------------------------------
------------------------------------------------------------------------
* * * * * * *
Transportation Plan:
* * * * * * *
Sec. 93.118 and/or Sec. Emissions budget and/or Interim
93.119. emissions.
* * * * * * *
TIP:
* * * * * * *
Sec. 93.118 and/or Sec. Emissions budget and/or Interim
93.119. emissions.
* * * * * * *
Project (From a Conforming Plan
and TIP):
* * * * * * *
Sec. 93.117................ PM10 and PM2.5 control measures.
* * * * * * *
Project (Not From a Conforming
Plan and TIP):
* * * * * * *
Sec. 93.117................ PM10 and PM2.5 control measures.
Sec. 93.118 and/or Sec. Emissions budget and/or Interim
93.119. emissions.
* * * * * * *
------------------------------------------------------------------------
(c) 1-hour ozone NAAQS nonattainment and maintenance areas. This
paragraph applies when an area is nonattainment or maintenance for the
1-hour ozone NAAQS (i.e., until the effective date of any revocation of
the 1-hour ozone NAAQS for an area). In addition to the criteria listed
in Table 1 in paragraph (b) of this section that are required to be
satisfied at all times, in such ozone nonattainment and maintenance
areas conformity determinations must include a demonstration that the
budget and/or interim emissions tests are satisfied as described in the
following:
(1) In all 1-hour ozone nonattainment and maintenance areas the
budget test must be satisfied as required by Sec. 93.118 for conformity
determinations made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation plan
revision or maintenance plan for the 1-hour ozone NAAQS is adequate for
transportation conformity purposes;
(ii) The publication date of EPA's approval of such a budget in the
Federal Register; or
(iii) The effective date of EPA's approval of such a budget in the
Federal Register, if such approval is completed through direct final
rulemaking.
(2) In ozone nonattainment areas that are required to submit a
control strategy implementation plan revision for the 1-hour ozone NAAQS
(usually moderate and above areas), the interim emissions tests must be
satisfied as required by Sec. 93.119 for conformity determinations made
when there is no approved motor vehicle emissions budget from an
applicable implementation plan for the 1-hour ozone NAAQS and no
adequate motor vehicle emissions budget from a submitted control
strategy implementation plan revision or maintenance plan for the 1-hour
ozone NAAQS.
(3) An ozone nonattainment area must satisfy the interim emissions
test for NO<INF>X</INF>, as required by Sec. 93.119, if the
implementation plan or plan submission that is applicable for the
purposes of conformity determinations is a 15% plan or Phase I
attainment demonstration that does not include a motor vehicle emissions
budget for NO<INF>X</INF>. The implementation plan for the 1-hour ozone
NAAQS will be considered to establish a motor vehicle emissions budget
for NO<INF>X</INF> if the implementation plan or plan submission
contains an explicit NO<INF>X</INF> motor vehicle emissions budget that
is intended to act as a ceiling on future NO<INF>X</INF>
[[Page 559]]
emissions, and the NO<INF>X</INF> motor vehicle emissions budget is a
net reduction from NO<INF>X</INF> emissions levels in 1990.
(4) Ozone nonattainment areas that have not submitted a maintenance
plan and that are not required to submit a control strategy
implementation plan revision for the 1-hour ozone NAAQS (usually
marginal and below areas) must satisfy one of the following
requirements:
(i) The interim emissions tests required by Sec. 93.119; or
(ii) The State shall submit to EPA an implementation plan revision
for the 1-hour ozone NAAQS that contains motor vehicle emissions
budget(s) and a reasonable further progress or attainment demonstration,
and the budget test required by Sec. 93.118 must be satisfied using the
adequate or approved motor vehicle emissions budget(s) (as described in
paragraph (c)(1) of this section).
(5) Notwithstanding paragraphs (c)(1) and (c)(2) of this section,
moderate and above ozone nonattainment areas with three years of clean
data for the 1-hour ozone NAAQS that have not submitted a maintenance
plan and that EPA has determined are not subject to the Clean Air Act
reasonable further progress and attainment demonstration requirements
for the 1-hour ozone NAAQS must satisfy one of the following
requirements:
(i) The interim emissions tests as required by Sec. 93.119;
(ii) The budget test as required by Sec. 93.118, using the adequate
or approved motor vehicle emissions budgets in the submitted or
applicable control strategy implementation plan for the 1-hour ozone
NAAQS (subject to the timing requirements of paragraph (c)(1) of this
section); or
(iii) The budget test as required by Sec. 93.118, using the motor
vehicle emissions of ozone precursors in the most recent year of clean
data as motor vehicle emissions budgets, if such budgets are established
by the EPA rulemaking that determines that the area has clean data for
the 1-hour ozone NAAQS.
(d) 8-hour ozone NAAQS nonattainment and maintenance areas without
motor vehicle emissions budgets for the 1-hour ozone NAAQS for any
portion of the 8-hour nonattainment area. This paragraph applies to
areas that were never designated nonattainment for the 1-hour ozone
NAAQS and areas that were designated nonattainment for the 1-hour ozone
NAAQS but that never submitted a control strategy SIP or maintenance
plan with approved or adequate motor vehicle emissions budgets. This
paragraph applies 1 year after the effective date of EPA's nonattainment
designation for the 8-hour ozone NAAQS for an area, according to Sec.
93.102(d). In addition to the criteria listed in Table 1 in paragraph
(b) of this section that are required to be satisfied at all times, in
such 8-hour ozone nonattainment and maintenance areas conformity
determinations must include a demonstration that the budget and/or
interim emissions tests are satisfied as described in the following:
(1) In such 8-hour ozone nonattainment and maintenance areas the
budget test must be satisfied as required by Sec. 93.118 for conformity
determinations made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation plan
revision or maintenance plan for the 8-hour ozone NAAQS is adequate for
transportation conformity purposes;
(ii) The publication date of EPA's approval of such a budget in the
Federal Register; or
(iii) The effective date of EPA's approval of such a budget in the
Federal Register, if such approval is completed through direct final
rulemaking.
(2) In ozone nonattainment areas that are required to submit a
control strategy implementation plan revision for the 8-hour ozone NAAQS
(usually moderate and above and certain Clean Air Act, part D, subpart 1
areas), the interim emissions tests must be satisfied as required by
Sec. 93.119 for conformity determinations made when there is no
approved motor vehicle emissions budget from an applicable
implementation plan for the 8-hour ozone NAAQS and no adequate motor
vehicle emissions budget from a submitted control strategy
implementation plan revision or maintenance plan for the 8-hour ozone
NAAQS.
(3) Such an 8-hour ozone nonattainment area must satisfy the interim
emissions test for NO<INF>X</INF>, as required by Sec. 93.119, if the
implementation plan or plan submission that is applicable for the
purposes of conformity determinations is a 15% plan or other control
strategy SIP that addresses reasonable further progress that does not
include a motor vehicle emissions budget for NO<INF>X</INF>. The
implementation plan for the 8-hour ozone NAAQS will be considered to
establish a motor vehicle emissions budget for NO<INF>X</INF> if the
implementation plan or plan submission contains an explicit
NO<INF>X</INF> motor vehicle emissions budget that is intended to act as
a ceiling on future NO<INF>X</INF> emissions, and the NO<INF>X</INF>
motor vehicle emissions budget is a net reduction from NO<INF>X</INF>
emissions levels in 2002.
(4) Ozone nonattainment areas that have not submitted a maintenance
plan and that are not required to submit a control strategy
implementation plan revision for the 8-hour ozone NAAQS (usually
marginal and certain Clean Air Act, part D, subpart 1 areas) must
satisfy one of the following requirements:
(i) The interim emissions tests required by Sec. 93.119; or
(ii) The State shall submit to EPA an implementation plan revision
for the 8-hour ozone NAAQS that contains motor vehicle emissions
budget(s) and a reasonable further
[[Page 560]]
progress or attainment demonstration, and the budget test required by
Sec. 93.118 must be satisfied using the adequate or approved motor
vehicle emissions budget(s) (as described in paragraph (d)(1) of this
section).
(5) Notwithstanding paragraphs (d)(1) and (d)(2) of this section,
ozone nonattainment areas with three years of clean data for the 8-hour
ozone NAAQS that have not submitted a maintenance plan and that EPA has
determined are not subject to the Clean Air Act reasonable further
progress and attainment demonstration requirements for the 8-hour ozone
NAAQS must satisfy one of the following requirements:
(i) The interim emissions tests as required by Sec. 93.119;
(ii) The budget test as required by Sec. 93.118, using the adequate
or approved motor vehicle emissions budgets in the submitted or
applicable control strategy implementation plan for the 8-hour ozone
NAAQS (subject to the timing requirements of paragraph (d)(1) of this
section); or
(iii) The budget test as required by Sec. 93.118, using the motor
vehicle emissions of ozone precursors in the most recent year of clean
data as motor vehicle emissions budgets, if such budgets are established
by the EPA rulemaking that determines that the area has clean data for
the 8-hour ozone NAAQS.
(e) 8-hour ozone NAAQS nonattainment and maintenance areas with
motor vehicle emissions budgets for the 1-hour ozone NAAQS that cover
all or a portion of the 8-hour nonattainment area. This provision
applies 1 year after the effective date of EPA's nonattainment
designation for the 8-hour ozone NAAQS for an area, according to Sec.
93.102(d). In addition to the criteria listed in Table 1 in paragraph
(b) of this section that are required to be satisfied at all times, in
such 8-hour ozone nonattainment and maintenance areas conformity
determinations must include a demonstration that the budget and/or
interim emissions tests are satisfied as described in the following:
(1) In such 8-hour ozone nonattainment and maintenance areas the
budget test must be satisfied as required by Sec. 93.118 for conformity
determinations made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation plan
revision or maintenance plan for the 8-hour ozone NAAQS is adequate for
transportation conformity purposes;
(ii) The publication date of EPA's approval of such a budget in the
Federal Register; or
(iii) The effective date of EPA's approval of such a budget in the
Federal Register, if such approval is completed through direct final
rulemaking.
(2) Prior to paragraph (e)(1) of this section applying, the
following test(s) must be satisfied, subject to the exception in
paragraph (e)(2)(v):
(i) If the 8-hour ozone nonattainment area covers the same
geographic area as the 1-hour ozone nonattainment or maintenance
area(s), the budget test as required by Sec. 93.118 using the approved
or adequate motor vehicle emissions budgets in the 1-hour ozone
applicable implementation plan or implementation plan submission;
(ii) If the 8-hour ozone nonattainment area covers a smaller
geographic area within the 1-hour ozone nonattainment or maintenance
area(s), the budget test as required by Sec. 93.118 for either:
(A) The 8-hour nonattainment area using corresponding portion(s) of
the approved or adequate motor vehicle emissions budgets in the 1-hour
ozone applicable implementation plan or implementation plan submission
where such portion(s) can reasonably be identified through the
interagency consultation process required by Sec. 93.105; or
(B) The 1-hour nonattainment area using the approved or adequate
motor vehicle emissions budgets in the 1-hour ozone applicable
implementation plan or implementation plan submission. If additional
emissions reductions are necessary to meet the budget test for the 8-
hour ozone NAAQS in such cases, these emissions reductions must come
from within the 8-hour nonattainment area;
(iii) If the 8-hour ozone nonattainment area covers a larger
geographic area and encompasses the entire 1-hour ozone nonattainment or
maintenance area(s):
(A) The budget test as required by Sec. 93.118 for the portion of
the 8-hour ozone nonattainment area covered by the approved or adequate
motor vehicle emissions budgets in the 1-hour ozone applicable
implementation plan or implementation plan submission; and
(B) The interim emissions tests as required by Sec. 93.119 for
either: the portion of the 8-hour ozone nonattainment area not covered
by the approved or adequate budgets in the 1-hour ozone implementation
plan, the entire 8-hour ozone nonattainment area, or the entire portion
of the 8-hour ozone nonattainment area within an individual state, in
the case where separate 1-hour SIP budgets are established for each
state of a multi-state 1-hour nonattainment or maintenance area;
(iv) If the 8-hour ozone nonattainment area partially covers a 1-
hour ozone nonattainment or maintenance area(s):
(A) The budget test as required by Sec. 93.118 for the portion of
the 8-hour ozone nonattainment area covered by the corresponding portion
of the approved or adequate motor vehicle emissions budgets in the 1-
hour ozone applicable implementation plan or implementation plan
submission where they can be reasonably identified through the
interagency consultation process required by Sec. 93.105; and
[[Page 561]]
(B) The interim emissions tests as required by Sec. 93.119, when
applicable, for either: the portion of the 8-hour ozone nonattainment
area not covered by the approved or adequate budgets in the 1-hour ozone
implementation plan, the entire 8-hour ozone nonattainment area, or the
entire portion of the 8-hour ozone nonattainment area within an
individual state, in the case where separate 1-hour SIP budgets are
established for each state in a multi-state 1-hour nonattainment or
maintenance area.
(v) Notwithstanding paragraphs (e)(2)(i), (ii), (iii), or (iv) of
this section, the interim emissions tests as required by Sec. 93.119,
where the budget test using the approved or adequate motor vehicle
emissions budgets in the 1-hour ozone applicable implementation plan(s)
or implementation plan submission(s) for the relevant area or portion
thereof is not the appropriate test and the interim emissions tests are
more appropriate to ensure that the transportation plan, TIP, or project
not from a conforming plan and TIP will not create new violations,
worsen existing violations, or delay timely attainment of the 8-hour
ozone standard, as determined through the interagency consultation
process required by Sec. 93.105.
(3) Such an 8-hour ozone nonattainment area must satisfy the interim
emissions test for NO<INF>X</INF>, as required by Sec. 93.119, if the
only implementation plan or plan submission that is applicable for the
purposes of conformity determinations is a 15% plan or other control
strategy SIP that addresses reasonable further progress that does not
include a motor vehicle emissions budget for NO<INF>X</INF>. The
implementation plan for the 8-hour ozone NAAQS will be considered to
establish a motor vehicle emissions budget for NO<INF>X</INF> if the
implementation plan or plan submission contains an explicit
NO<INF>X</INF> motor vehicle emissions budget that is intended to act as
a ceiling on future NO<INF>X</INF> emissions, and the NO<INF>X</INF>
motor vehicle emissions budget is a net reduction from NO<INF>X</INF>
emissions levels in 2002. Prior to an adequate or approved
NO<INF>X</INF> motor vehicle emissions budget in the implementation plan
submission for the 8-hour ozone NAAQS, the implementation plan for the
1-hour ozone NAAQS will be considered to establish a motor vehicle
emissions budget for NO<INF>X</INF> if the implementation plan contains
an explicit NO<INF>X</INF> motor vehicle emissions budget that is
intended to act as a ceiling on future NO<INF>X</INF> emissions, and the
NO<INF>X</INF> motor vehicle emissions budget is a net reduction from
NO<INF>X</INF> emissions levels in 1990.
(4) Notwithstanding paragraphs (e)(1) and (e)(2) of this section,
ozone nonattainment areas with three years of clean data for the 8-hour
ozone NAAQS that have not submitted a maintenance plan and that EPA has
determined are not subject to the Clean Air Act reasonable further
progress and attainment demonstration requirements for the 8-hour ozone
NAAQS must satisfy one of the following requirements:
(i) The budget test and/or interim emissions tests as required by
Sec. Sec. 93.118 and 93.119 and as described in paragraph (e)(2) of
this section;
(ii) The budget test as required by Sec. 93.118, using the adequate
or approved motor vehicle emissions budgets in the submitted or
applicable control strategy implementation plan for the 8-hour ozone
NAAQS (subject to the timing requirements of paragraph (e)(1) of this
section); or
(iii) The budget test as required by Sec. 93.118, using the motor
vehicle emissions of ozone precursors in the most recent year of clean
data as motor vehicle emissions budgets, if such budgets are established
by the EPA rulemaking that determines that the area has clean data for
the 8-hour ozone NAAQS.
(f) CO nonattainment and maintenance areas. In addition to the
criteria listed in Table 1 in paragraph (b) of this section that are
required to be satisfied at all times, in CO nonattainment and
maintenance areas conformity determinations must include a demonstration
that the hot-spot, budget and/or interim emissions tests are satisfied
as described in the following:
* * * * *
(2) In CO nonattainment and maintenance areas the budget test must
be satisfied as required by Sec. 93.118 for conformity determinations
made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation plan
revision or maintenance plan is adequate for transportation conformity
purposes;
(ii) The publication date of EPA's approval of such a budget in the
Federal Register; or
(iii) The effective date of EPA's approval of such a budget in the
Federal Register, if such approval is completed through direct final
rulemaking.
(3) Except as provided in paragraph (f)(4) of this section, in CO
nonattainment areas the interim emissions tests must be satisfied as
required by Sec. 93.119 for conformity determinations made when there
is no approved motor vehicle emissions budget from an applicable
implementation plan and no adequate motor vehicle emissions budget from
a submitted control strategy implementation plan revision or maintenance
plan.
(4) * * *
(i) The interim emissions tests required by Sec. 93.119; or
(ii) The State shall submit to EPA an implementation plan revision
that contains motor vehicle emissions budget(s) and an attainment
demonstration, and the budget test required by Sec. 93.118 must be
satisfied using
[[Page 562]]
the adequate or approved motor vehicle emissions budget(s) (as described
in paragraph (f)(2) of this section).
(g) PM10 nonattainment and maintenance areas. In addition to the
criteria listed in Table 1 in paragraph (b) of this section that are
required to be satisfied at all times, in PM<INF>10</INF> nonattainment
and maintenance areas conformity determinations must include a
demonstration that the hot-spot, budget and/or interim emissions tests
are satisfied as described in the following:
(1) * * *
(2) In PM<INF>10</INF> nonattainment and maintenance areas the
budget test must be satisfied as required by Sec. 93.118 for conformity
determinations made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation plan
revision or maintenance plan is adequate for transportation conformity
purposes;
(ii) The publication date of EPA's approval of such a budget in the
Federal Register; or
(iii) The effective date of EPA's approval of such a budget in the
Federal Register, if such approval is completed through direct final
rulemaking.
(3) In PM<INF>10</INF> nonattainment areas the interim emissions
tests must be satisfied as required by Sec. 93.119 for conformity
determinations made:
(i) If there is no approved motor vehicle emissions budget from an
applicable implementation plan and no adequate motor vehicle emissions
budget from a submitted control strategy implementation plan revision or
maintenance plan; or
(ii) If the submitted implementation plan revision is a
demonstration of impracticability under CAA section 189(a)(1)(B)(ii) and
does not demonstrate attainment.
(h) NO2 nonattainment and maintenance areas. In addition to the
criteria listed in Table 1 in paragraph (b) of this section that are
required to be satisfied at all times, in NO<INF>2</INF> nonattainment
and maintenance areas conformity determinations must include a
demonstration that the budget and/or interim emissions tests are
satisfied as described in the following:
(1) In NO<INF>2</INF> nonattainment and maintenance areas the budget
test must be satisfied as required by Sec. 93.118 for conformity
determinations made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation plan
revision or maintenance plan is adequate for transportation conformity
purposes;
(ii) The publication date of EPA's approval of such a budget in the
Federal Register; or
(iii) The effective date of EPA's approval of such a budget in the
Federal Register, if such approval is completed through direct final
rulemaking.
(2) In NO<INF>2</INF> nonattainment areas the interim emissions
tests must be satisfied as required by Sec. 93.119 for conformity
determinations made when there is no approved motor vehicle emissions
budget from an applicable implementation plan and no adequate motor
vehicle emissions budget from a submitted control strategy
implementation plan revision or maintenance plan.
(i) PM 2.5 nonattainment and maintenance areas. In addition to the
criteria listed in Table 1 in paragraph (b) of this section that are
required to be satisfied at all times, in PM<INF>2.5</INF> nonattainment
and maintenance areas conformity determinations must include a
demonstration that the budget and/or interim emissions tests are
satisfied as described in the following:
(1) In PM<INF>2.5</INF> nonattainment and maintenance areas the
budget test must be satisfied as required by Sec. 93.118 for conformity
determinations made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation plan
revision or maintenance plan is adequate for transportation conformity
purposes;
(ii) The publication date of EPA's approval of such a budget in the
Federal Register; or
(iii) The effective date of EPA's approval of such a budget in the
Federal Register, if such approval is completed through direct final
rulemaking.
(2) In PM<INF>2.5</INF> nonattainment areas the interim emissions
tests must be satisfied as required by Sec. 93.119 for conformity
determinations made if there is no approved motor vehicle emissions
budget from an applicable implementation plan and no adequate motor
vehicle emissions budget from a submitted control strategy
implementation plan revision or maintenance plan.
(j) Areas with limited maintenance plans. Notwithstanding the other
paragraphs of this section, an area is not required to satisfy the
regional emissions analysis for Sec. 93.118 and/or Sec. 93.119 for a
given pollutant and NAAQS, if the area has an adequate or approved
limited maintenance plan for such pollutant and NAAQS. A limited
maintenance plan would have to demonstrate that it would be unreasonable
to expect that such an area would experience enough motor vehicle
emissions growth for a NAAQS violation to occur. A conformity
determination that meets other applicable criteria in Table 1 of
paragraph (b) of this section is still required, including the hot-spot
requirements for projects in CO and PM<INF>10</INF> areas.
[[Page 563]]
(k) Areas with insignificant motor vehicle emissions.
Notwithstanding the other paragraphs in this section, an area is not
required to satisfy a regional emissions analysis for Sec. 93.118 and/
or Sec. 93.119 for a given pollutant/precursor and NAAQS, if EPA finds
through the adequacy or approval process that a SIP demonstrates that
regional motor vehicle emissions are an insignificant contributor to the
air quality problem for that pollutant/precursor and NAAQS. The SIP
would have to demonstrate that it would be unreasonable to expect that
such an area would experience enough motor vehicle emissions growth in
that pollutant/precursor for a NAAQS violation to occur. Such a finding
would be based on a number of factors, including the percentage of motor
vehicle emissions in the context of the total SIP inventory, the current
state of air quality as determined by monitoring data for that NAAQS,
the absence of SIP motor vehicle control measures, and historical trends
and future projections of the growth of motor vehicle emissions. A
conformity determination that meets other applicable criteria in Table 1
of paragraph (b) of this section is still required, including regional
emissions analyses for Sec. 93.118 and/or Sec. 93.119 for other
pollutants/precursors and NAAQS that apply. Hot-spot requirements for
projects in CO and PM<INF>10</INF> areas in Sec. 93.116 must also be
satisfied, unless EPA determines that the SIP also demonstrates that
projects will not create new localized violations and/or increase the
severity or number of existing violations of such NAAQS. If EPA
subsequently finds that motor vehicle emissions of a given pollutant/
precursor are significant, this paragraph would no longer apply for
future conformity determinations for that pollutant/precursor and NAAQS.
(l) * * *
(2) Isolated rural nonattainment and maintenance areas are subject
to the budget and/or interim emissions tests as described in paragraphs
(c) through (k) of this section, with the following modifications:
* * * * *
Sec. 93.110 Criteria and procedures: Latest planning assumptions.
(a) The conformity determination, with respect to all other
applicable criteria in Sec. Sec. 93.111 through 93.119, must be based
upon the most recent planning assumptions in force at the time of the
conformity determination. The conformity determination must satisfy the
requirements of paragraphs (b) through (f) of this section.
(b) Assumptions must be derived from the estimates of current and
future population, employment, travel, and congestion most recently
developed by the MPO or other agency authorized to make such estimates
and approved by the MPO. The conformity determination must also be based
on the latest assumptions about current and future background
concentrations.
(c) The conformity determination for each transportation plan and
TIP must discuss how transit operating policies (including fares and
service levels) and assumed transit ridership have changed since the
previous conformity determination.
(d) The conformity determination must include reasonable assumptions
about transit service and increases in transit fares and road and bridge
tolls over time.
(e) The conformity determination must use the latest existing
information regarding the effectiveness of the TCMs and other
implementation plan measures which have already been implemented.
(f) Key assumptions shall be specified and included in the draft
documents and supporting materials used for the interagency and public
consultation required by Sec. 93.105.
Effective Date Note: At 69 FR 44077, July 1, 2004, Sec. 93.110 was
amended by revising paragraph (a), effective Aug. 2, 2004. For the
convenience of the user, the revised text is set forth as follows:
Sec. 93.110 Criteria and procedures: Latest planning assumptions.
(a) Except as provided in this paragraph, the conformity
determination, with respect to all other applicable criteria in
Sec. Sec. 93.111 through 93.119, must be based upon the most recent
planning assumptions in force at the time the conformity analysis
begins. The conformity determination must satisfy the requirements of
paragraphs (b) through (f) of this section using the planning
assumptions available at the time the conformity analysis begins as
determined through the interagency consultation process required in
Sec. 93.105(c)(1)(i). The ``time the conformity analysis begins'' for a
transportation plan or TIP determination is the point at which the MPO
or other designated agency begins to model the impact of the proposed
transportation plan or TIP on travel and/or emissions. New data that
becomes available after an analysis begins is required to be used in the
conformity determination only if a significant delay in the analysis has
occurred,
[[Page 564]]
as determined through interagency consultation.
* * * * *
Sec. 93.111 Criteria and procedures: Latest emissions model.
(a) The conformity determination must be based on the latest
emission estimation model available. This criterion is satisfied if the
most current version of the motor vehicle emissions model specified by
EPA for use in the preparation or revision of implementation plans in
that State or area is used for the conformity analysis. Where EMFAC is
the motor vehicle emissions model used in preparing or revising the
applicable implementation plan, new versions must be approved by EPA
before they are used in the conformity analysis.
(b) EPA will consult with DOT to establish a grace period following
the specification of any new model.
(1) The grace period will be no less than three months and no more
than 24 months after notice of availability is published in the Federal
Register.
(2) The length of the grace period will depend on the degree of
change in the model and the scope of re-planning likely to be necessary
by MPOs in order to assure conformity. If the grace period will be
longer than three months, EPA will announce the appropriate grace period
in the Federal Register.
(c) Transportation plan and TIP conformity analyses for which the
emissions analysis was begun during the grace period or before the
Federal Register notice of availability of the latest emission model may
continue to use the previous version of the model. Conformity
determinations for projects may also be based on the previous model if
the analysis was begun during the grace period or before the Federal
Register notice of availability, and if the final environmental document
for the project is issued no more than three years after the issuance of
the draft environmental document.
Sec. 93.112 Criteria and procedures: Consultation.
Conformity must be determined according to the consultation
procedures in this subpart and in the applicable implementation plan,
and according to the public involvement procedures established in
compliance with 23 CFR part 450. Until the implementation plan revision
required by Sec. 51.390 of this chapter is fully approved by EPA, the
conformity determination must be made according to Sec. 93.105 (a)(2)
and (e) and the requirements of 23 CFR part 450.
Sec. 93.113 Criteria and procedures: Timely implementation of TCMs.
(a) The transportation plan, TIP, or any FHWA/FTA project which is
not from a conforming plan and TIP must provide for the timely
implementation of TCMs from the applicable implementation plan.
(b) For transportation plans, this criterion is satisfied if the
following two conditions are met:
(1) The transportation plan, in describing the envisioned future
transportation system, provides for the timely completion or
implementation of all TCMs in the applicable implementation plan which
are eligible for funding under title 23 U.S.C. or the Federal Transit
Laws, consistent with schedules included in the applicable
implementation plan.
(2) Nothing in the transportation plan interferes with the
implementation of any TCM in the applicable implementation plan.
(c) For TIPs, this criterion is satisfied if the following
conditions are met:
(1) An examination of the specific steps and funding source(s)
needed to fully implement each TCM indicates that TCMs which are
eligible for funding under title 23 U.S.C. or the Federal Transit Laws
are on or ahead of the schedule established in the applicable
implementation plan, or, if such TCMs are behind the schedule
established in the applicable implementation plan, the MPO and DOT have
determined that past obstacles to implementation of the TCMs have been
identified and have been or are being overcome, and that all State and
local agencies with influence over approvals or funding for TCMs are
giving maximum priority to approval or funding of TCMs over other
projects within their control, including
[[Page 565]]
projects in locations outside the nonattainment or maintenance area.
(2) If TCMs in the applicable implementation plan have previously
been programmed for Federal funding but the funds have not been
obligated and the TCMs are behind the schedule in the implementation
plan, then the TIP cannot be found to conform if the funds intended for
those TCMs are reallocated to projects in the TIP other than TCMs, or if
there are no other TCMs in the TIP, if the funds are reallocated to
projects in the TIP other than projects which are eligible for Federal
funding intended for air quality improvement projects, e.g., the
Congestion Mitigation and Air Quality Improvement Program.
(3) Nothing in the TIP may interfere with the implementation of any
TCM in the applicable implementation plan.
(d) For FHWA/FTA projects which are not from a conforming
transportation plan and TIP, this criterion is satisfied if the project
does not interfere with the implementation of any TCM in the applicable
implementation plan.
Sec. 93.114 Criteria and procedures: Currently conforming
transportation plan and TIP.
There must be a currently conforming transportation plan and
currently conforming TIP at the time of project approval.
(a) Only one conforming transportation plan or TIP may exist in an
area at any time; conformity determinations of a previous transportation
plan or TIP expire once the current plan or TIP is found to conform by
DOT. The conformity determination on a transportation plan or TIP will
also lapse if conformity is not determined according to the frequency
requirements specified in Sec. 93.104.
(b) This criterion is not required to be satisfied at the time of
project approval for a TCM specifically included in the applicable
implementation plan, provided that all other relevant criteria of this
subpart are satisfied.
Sec. 93.115 Criteria and procedures: Projects from a plan and TIP.
(a) The project must come from a conforming plan and program. If
this criterion is not satisfied, the project must satisfy all criteria
in Table 1 of Sec. 93.109(b) for a project not from a conforming
transportation plan and TIP. A project is considered to be from a
conforming transportation plan if it meets the requirements of paragraph
(b) of this section and from a conforming program if it meets the
requirements of paragraph (c) of this section. Special provisions for
TCMs in an applicable implementation plan are provided in paragraph (d)
of this section.
(b) A project is considered to be from a conforming transportation
plan if one of the following conditions applies:
(1) For projects which are required to be identified in the
transportation plan in order to satisfy Sec. 93.106 (``Content of
transportation plans''), the project is specifically included in the
conforming transportation plan and the project's design concept and
scope have not changed significantly from those which were described in
the transportation plan, or in a manner which would significantly impact
use of the facility; or
(2) For projects which are not required to be specifically
identified in the transportation plan, the project is identified in the
conforming transportation plan, or is consistent with the policies and
purpose of the transportation plan and will not interfere with other
projects specifically included in the transportation plan.
(c) A project is considered to be from a conforming program if the
following conditions are met:
(1) The project is included in the conforming TIP and the design
concept and scope of the project were adequate at the time of the TIP
conformity determination to determine its contribution to the TIP's
regional emissions, and the project design concept and scope have not
changed significantly from those which were described in the TIP; and
(2) If the TIP describes a project design concept and scope which
includes project-level emissions mitigation or control measures, written
commitments to implement such measures must be obtained from the project
sponsor and/or operator as required by Sec. 93.125(a) in order for the
project to be considered from a conforming program.
[[Page 566]]
Any change in these mitigation or control measures that would
significantly reduce their effectiveness constitutes a change in the
design concept and scope of the project.
(d) TCMs. This criterion is not required to be satisfied for TCMs
specifically included in an applicable implementation plan.
Sec. 93.116 Criteria and procedures: Localized CO and PM<INF>10</INF>
violations (hot spots).
(a) This paragraph applies at all times. The FHWA/FTA project must
not cause or contribute to any new localized CO or PM<INF>10</INF>
violations or increase the frequency or severity of any existing CO or
PM<INF>10</INF> violations in CO and PM<INF>10</INF> nonattainment and
maintenance areas. This criterion is satisfied if it is demonstrated
that no new local violations will be created and the severity or number
of existing violations will not be increased as a result of the project.
The demonstration must be performed according to the consultation
requirements of Sec. 93.105(c)(1)(i) and the methodology requirements
of Sec. 93.123.
(b) This paragraph applies for CO nonattainment areas as described
in Sec. 93.109(d)(1). Each FHWA/FTA project must eliminate or reduce
the severity and number of localized CO violations in the area
substantially affected by the project (in CO nonattainment areas). This
criterion is satisfied with respect to existing localized CO violations
if it is demonstrated that existing localized CO violations will be
eliminated or reduced in severity and number as a result of the project.
The demonstration must be performed according to the consultation
requirements of Sec. 93.105(c)(1)(i) and the methodology requirements
of Sec. 93.123.
Effective Date Note: At 69 FR 44077, July 1, 2004, Sec. 93.116 was
revised, effective Aug. 2, 2004. For the convenience of the user, the
revised text is set forth as follows:
Sec. 93.116 Criteria and procedures: Localized CO and PM<INF>10</INF>
violations (hot spots).
(a) This paragraph applies at all times. The FHWA/FTA project must
not cause or contribute to any new localized CO or PM<INF>10</INF>
violations or increase the frequency or severity of any existing CO or
PM<INF>10</INF> violations in CO and PM<INF>10</INF> nonattainment and
maintenance areas. This criterion is satisfied if it is demonstrated
that during the time frame of the transportation plan (or regional
emissions analysis) no new local violations will be created and the
severity or number of existing violations will not be increased as a
result of the project. The demonstration must be performed according to
the consultation requirements of Sec. 93.105(c)(1)(i) and the
methodology requirements of Sec. 93.123.
(b) This paragraph applies for CO nonattainment areas as described
in Sec. 93.109(f)(1). Each FHWA/FTA project must eliminate or reduce
the severity and number of localized CO violations in the area
substantially affected by the project (in CO nonattainment areas). This
criterion is satisfied with respect to existing localized CO violations
if it is demonstrated that during the time frame of the transportation
plan (or regional emissions analysis) existing localized CO violations
will be eliminated or reduced in severity and number as a result of the
project. The demonstration must be performed according to the
consultation requirements of Sec. 93.105(c)(1)(i) and the methodology
requirements of Sec. 93.123.
Sec. 93.117 Criteria and procedures: Compliance with PM<INF>10</INF>
control measures.
The FHWA/FTA project must comply with PM<INF>10</INF> control
measures in the applicable implementation plan. This criterion is
satisfied if the project-level conformity determination contains a
written commitment from the project sponsor to include in the final
plans, specifications, and estimates for the project those control
measures (for the purpose of limiting PM<INF>10</INF> emissions from the
construction activities and/or normal use and operation associated with
the project) that are contained in the applicable implementation plan.
Effective Date Note: At 69 FR 44078, July 1, 2004, Sec. 93.117 was
revised, effective Aug. 2, 2004. For the convenience of the user, the
revised text is set forth as follows:
Sec. 93.117 Criteria and procedures: Compliance with PM<INF>10</INF>
and PM<INF>2.5</INF> control measures.
The FHWA/FTA project must comply with any PM<INF>10</INF> and
PM<INF>2.5</INF> control measures in the applicable implementation plan.
This criterion is satisfied if the project-level conformity
determination contains a written commitment from the project sponsor to
include in the final plans, specifications, and estimates for the
project those control measures (for the purpose of limiting
PM<INF>10</INF> and
[[Page 567]]
PM<INF>2.5</INF> emissions from the construction activities and/or
normal use and operation associated with the project) that are contained
in the applicable implementation plan.
Sec. 93.118 Criteria and procedures: Motor vehicle emissions budget.
(a) The transportation plan, TIP, and project not from a conforming
transportation plan and TIP must be consistent with the motor vehicle
emissions budget(s) in the applicable implementation plan (or
implementation plan submission). This criterion applies as described in
Sec. 93.109 (c) through (g). This criterion is satisfied if it is
demonstrated that emissions of the pollutants or pollutant precursors
described in paragraph (c) of this section are less than or equal to the
motor vehicle emissions budget(s) established in the applicable
implementation plan or implementation plan submission.
(b) Consistency with the motor vehicle emissions budget(s) must be
demonstrated for each year for which the applicable (and/or submitted)
implementation plan specifically establishes motor vehicle emissions
budget(s), for the last year of the transportation plan's forecast
period, and for any intermediate years as necessary so that the years
for which consistency is demonstrated are no more than ten years apart,
as follows:
(1) Until a maintenance plan is submitted:
(i) Emissions in each year (such as milestone years and the
attainment year) for which the control strategy implementation plan
revision establishes motor vehicle emissions budget(s) must be less than
or equal to that year's motor vehicle emissions budget(s); and
(ii) Emissions in years for which no motor vehicle emissions
budget(s) are specifically established must be less than or equal to the
motor vehicle emissions budget(s) established for the most recent prior
year. For example, emissions in years after the attainment year for
which the implementation plan does not establish a budget must be less
than or equal to the motor vehicle emissions budget(s) for the
attainment year.
(2) When a maintenance plan has been submitted:
(i) Emissions must be less than or equal to the motor vehicle
emissions budget(s) established for the last year of the maintenance
plan, and for any other years for which the maintenance plan establishes
motor vehicle emissions budgets. If the maintenance plan does not
establish motor vehicle emissions budgets for any years other than the
last year of the maintenance plan, the demonstration of consistency with
the motor vehicle emissions budget(s) must be accompanied by a
qualitative finding that there are no factors which would cause or
contribute to a new violation or exacerbate an existing violation in the
years before the last year of the maintenance plan. The interagency
consultation process required by Sec. 93.105 shall determine what must
be considered in order to make such a finding;
(ii) For years after the last year of the maintenance plan,
emissions must be less than or equal to the maintenance plan's motor
vehicle emissions budget(s) for the last year of the maintenance plan;
and
(iii) If an approved control strategy implementation plan has
established motor vehicle emissions budgets for years in the timeframe
of the transportation plan, emissions in these years must be less than
or equal to the control strategy implementation plan's motor vehicle
emissions budget(s) for these years.
(c) Consistency with the motor vehicle emissions budget(s) must be
demonstrated for each pollutant or pollutant precursor in Sec.
93.102(b) for which the area is in nonattainment or maintenance and for
which the applicable implementation plan (or implementation plan
submission) establishes a motor vehicle emissions budget.
(d) Consistency with the motor vehicle emissions budget(s) must be
demonstrated by including emissions from the entire transportation
system, including all regionally significant projects contained in the
transportation plan and all other regionally significant highway and
transit projects expected in the nonattainment or maintenance area in
the timeframe of the transportation plan.
[[Page 568]]
(1) Consistency with the motor vehicle emissions budget(s) must be
demonstrated with a regional emissions analysis that meets the
requirements of Sec. Sec. 93.122 and 93.105(c)(1)(i).
(2) The regional emissions analysis may be performed for any years
in the timeframe of the transportation plan provided they are not more
than ten years apart and provided the analysis is performed for the
attainment year (if it is in the timeframe of the transportation plan)
and the last year of the plan's forecast period. Emissions in years for
which consistency with motor vehicle emissions budgets must be
demonstrated, as required in paragraph (b) of this section, may be
determined by interpolating between the years for which the regional
emissions analysis is performed.
(e) Motor vehicle emissions budgets in submitted control strategy
implementation plan revisions and submitted maintenance plans. (1)
Consistency with the motor vehicle emissions budgets in submitted
control strategy implementation plan revisions or maintenance plans must
be demonstrated if EPA has declared the motor vehicle emissions
budget(s) adequate for transportation conformity purposes, or beginning
45 days after the control strategy implementation plan revision or
maintenance plan has been submitted (unless EPA has declared the motor
vehicle emissions budget(s) inadequate for transportation conformity
purposes). However, submitted implementation plans do not supersede the
motor vehicle emissions budgets in approved implementation plans for the
period of years addressed by the approved implementation plan.
(2) If EPA has declared an implementation plan submission's motor
vehicle emissions budget(s) inadequate for transportation conformity
purposes, the inadequate budget(s) shall not be used to satisfy the
requirements of this section. Consistency with the previously
established motor vehicle emissions budget(s) must be demonstrated. If
there are no previous approved implementation plans or implementation
plan submissions with motor vehicle emissions budgets, the emission
reduction tests required by Sec. 93.119 must be satisfied.
(3) If EPA declares an implementation plan submission's motor
vehicle emissions budget(s) inadequate for transportation conformity
purposes more than 45 days after its submission to EPA, and conformity
of a transportation plan or TIP has already been determined by DOT using
the budget(s), the conformity determination will remain valid. Projects
included in that transportation plan or TIP could still satisfy
Sec. Sec. 93.114 and 93.115, which require a currently conforming
transportation plan and TIP to be in place at the time of a project's
conformity determination and that projects come from a conforming
transportation plan and TIP.
(4) EPA will not find a motor vehicle emissions budget in a
submitted control strategy implementation plan revision or maintenance
plan to be adequate for transportation conformity purposes unless the
following minimum criteria are satisfied:
(i) The submitted control strategy implementation plan revision or
maintenance plan was endorsed by the Governor (or his or her designee)
and was subject to a State public hearing;
(ii) Before the control strategy implementation plan or maintenance
plan was submitted to EPA, consultation among federal, State, and local
agencies occurred; full implementation plan documentation was provided
to EPA; and EPA's stated concerns, if any, were addressed;
(iii) The motor vehicle emissions budget(s) is clearly identified
and precisely quantified;
(iv) The motor vehicle emissions budget(s), when considered together
with all other emissions sources, is consistent with applicable
requirements for reasonable further progress, attainment, or maintenance
(whichever is relevant to the given implementation plan submission);
(v) The motor vehicle emissions budget(s) is consistent with and
clearly related to the emissions inventory and the control measures in
the submitted control strategy implementation plan revision or
maintenance plan; and
(vi) Revisions to previously submitted control strategy
implementation plans or maintenance plans explain and document any
changes to
[[Page 569]]
previously submitted budgets and control measures; impacts on point and
area source emissions; any changes to established safety margins (see
Sec. 93.101 for definition); and reasons for the changes (including the
basis for any changes related to emission factors or estimates of
vehicle miles traveled).
(5) Before determining the adequacy of a submitted motor vehicle
emissions budget, EPA will review the State's compilation of public
comments and response to comments that are required to be submitted with
any implementation plan. EPA will document its consideration of such
comments and responses in a letter to the State indicating the adequacy
of the submitted motor vehicle emissions budget.
(6) When the motor vehicle emissions budget(s) used to satisfy the
requirements of this section are established by an implementation plan
submittal that has not yet been approved or disapproved by EPA, the MPO
and DOT's conformity determinations will be deemed to be a statement
that the MPO and DOT are not aware of any information that would
indicate that emissions consistent with the motor vehicle emissions
budget will cause or contribute to any new violation of any standard;
increase the frequency or severity of any existing violation of any
standard; or delay timely attainment of any standard or any required
interim emission reductions or other milestones.
Effective Date Note: At 69 FR 44078, July 1, 2004, Sec. 93.118 was
amended by revising the reference ``Sec. 93.109(c) through (g)'' in
paragraph (a) to read ``Sec. 93.109(c) through (l)''; revising
paragraphs (b) introductory text and (b)(2)(iii), adding paragraph
(b)(2)(iv), and removing the word ``and'' at the end of paragraph
(b)(2)(ii); revising paragraphs (e)(1), (e)(2) and (e)(3); and adding
new paragraph (f), effective Aug. 2, 2004. For the convenience of the
user, the added and revised text is set forth as follows:
Sec. 93.118 Criteria and procedures: Motor vehicle emissions budget.
* * * * *
(b) Consistency with the motor vehicle emissions budget(s) must be
demonstrated for each year for which the applicable (and/or submitted)
implementation plan specifically establishes motor vehicle emissions
budget(s), for the attainment year (if it is within the timeframe of the
transportation plan), for the last year of the transportation plan's
forecast period, and for any intermediate years as necessary so that the
years for which consistency is demonstrated are no more than ten years
apart, as follows:
* * * * *
(2) * * *
(iii) If an approved and/or submitted control strategy
implementation plan has established motor vehicle emissions budgets for
years in the time frame of the transportation plan, emissions in these
years must be less than or equal to the control strategy implementation
plan's motor vehicle emissions budget(s) for these years; and
(iv) For any analysis years before the last year of the maintenance
plan, emissions must be less than or equal to the motor vehicle
emissions budget(s) established for the most recent prior year.
* * * * *
(e) * * *
(1) Consistency with the motor vehicle emissions budgets in
submitted control strategy implementation plan revisions or maintenance
plans must be demonstrated if EPA has declared the motor vehicle
emissions budget(s) adequate for transportation conformity purposes, and
the adequacy finding is effective. However, motor vehicle emissions
budgets in submitted implementation plans do not supersede the motor
vehicle emissions budgets in approved implementation plans for the same
Clean Air Act requirement and the period of years addressed by the
previously approved implementation plan, unless EPA specifies otherwise
in its approval of a SIP.
(2) If EPA has not declared an implementation plan submission's
motor vehicle emissions budget(s) adequate for transportation conformity
purposes, the budget(s) shall not be used to satisfy the requirements of
this section. Consistency with the previously established motor vehicle
emissions budget(s) must be demonstrated. If there are no previously
approved implementation plans or implementation plan submissions with
adequate motor vehicle emissions budgets, the interim emissions tests
required by Sec. 93.119 must be satisfied.
(3) If EPA declares an implementation plan submission's motor
vehicle emissions budget(s) inadequate for transportation conformity
purposes after EPA had previously found the budget(s) adequate, and
conformity of a transportation plan or TIP has already been determined
by DOT using the budget(s), the conformity determination will remain
valid. Projects included in that transportation plan or TIP could still
satisfy Sec. Sec. 93.114 and 93.115, which require a currently
[[Page 570]]
conforming transportation plan and TIP to be in place at the time of a
project's conformity determination and that projects come from a
conforming transportation plan and TIP.
* * * * *
(f) Adequacy review process for implementation plan submissions. EPA
will use the procedure listed in paragraph (f)(1) or (f)(2) of this
section to review the adequacy of an implementation plan submission:
(1) When EPA reviews the adequacy of an implementation plan
submission prior to EPA's final action on the implementation plan,
(i) EPA will notify the public through EPA's website when EPA
receives an implementation plan submission that will be reviewed for
adequacy.
(ii) The public will have a minimum of 30 days to comment on the
adequacy of the implementation plan submission. If the complete
implementation plan is not accessible electronically through the
internet and a copy is requested within 15 days of the date of the
website notice, the comment period will be extended for 30 days from the
date that a copy of the implementation plan is mailed.
(iii) After the public comment period closes, EPA will inform the
State in writing whether EPA has found the submission adequate or
inadequate for use in transportation conformity, including response to
any comments submitted directly and review of comments submitted through
the State process, or EPA will include the determination of adequacy or
inadequacy in a proposed or final action approving or disapproving the
implementation plan under paragraph (f)(2)(iii) of this section.
(iv) EPA will publish a Federal Register notice to inform the public
of EPA's finding. If EPA finds the submission adequate, the effective
date of this finding will be 15 days from the date the notice is
published as established in the Federal Register notice, unless EPA is
taking a final approval action on the SIP as described in paragraph
(f)(2)(iii) of this section.
(v) EPA will announce whether the implementation plan submission is
adequate or inadequate for use in transportation conformity on EPA's
website. The website will also include EPA's response to comments if any
comments were received during the public comment period.
(vi) If after EPA has found a submission adequate, EPA has cause to
reconsider this finding, EPA will repeat actions described in paragraphs
(f)(1)(i) through (v) or (f)(2) of this section unless EPA determines
that there is no need for additional public comment given the
deficiencies of the implementation plan submission. In all cases where
EPA reverses its previous finding to a finding of inadequacy under
paragraph (f)(1) of this section, such a finding will become effective
immediately upon the date of EPA's letter to the State.
(vii) If after EPA has found a submission inadequate, EPA has cause
to reconsider the adequacy of that budget, EPA will repeat actions
described in paragraphs (f)(1)(i) through (v) or (f)(2) of this section.
(2) When EPA reviews the adequacy of an implementation plan
submission simultaneously with EPA's approval or disapproval of the
implementation plan,
(i) EPA's Federal Register notice of proposed or direct final
rulemaking will serve to notify the public that EPA will be reviewing
the implementation plan submission for adequacy.
(ii) The publication of the notice of proposed rulemaking will start
a public comment period of at least 30 days.
(iii) EPA will indicate whether the implementation plan submission
is adequate and thus can be used for conformity either in EPA's final
rulemaking or through the process described in paragraphs (f)(1)(iii)
through (v) of this section. If EPA makes an adequacy finding through a
final rulemaking that approves the implementation plan submission, such
a finding will become effective upon the publication date of EPA's
approval in the Federal Register, or upon the effective date of EPA's
approval if such action is conducted through direct final rulemaking.
EPA will respond to comments received directly and review comments
submitted through the State process and include the response to comments
in the applicable docket.
Sec. 93.119 Criteria and procedures: Emission reductions in areas
without motor vehicle emissions budgets.
(a) The transportation plan, TIP, and project not from a conforming
transportation plan and TIP must contribute to emissions reductions.
This criterion applies as described in Sec. 93.109(c) through (g). It
applies to the net effect of the action (transportation plan, TIP, or
project not from a conforming transportation plan and TIP) on motor
vehicle emissions from the entire transportation system.
(b) This criterion may be met in moderate and above ozone
nonattainment areas that are subject to the reasonable further progress
requirements of CAA section 182(b)(1) and in moderate with design value
greater than 12.7 ppm and serious CO nonattainment areas if
[[Page 571]]
a regional emissions analysis that satisfies the requirements of Sec.
93.122 and paragraphs (e) through (h) of this section demonstrates that
for each analysis year and for each of the pollutants described in
paragraph (d) of this section:
(1) The emissions predicted in the ``Action'' scenario are less than
the emissions predicted in the ``Baseline'' scenario, and this can be
reasonably expected to be true in the periods between the analysis
years; and
(2) The emissions predicted in the ``Action'' scenario are lower
than 1990 emissions by any nonzero amount.
(c) This criterion may be met in PM<INF>10</INF> and NO<INF>2</INF>
nonattainment areas; marginal and below ozone nonattainment areas and
other ozone nonattainment areas that are not subject to the reasonable
further progress requirements of CAA section 182(b)(1); and moderate
with design value less than 12.7 ppm and below CO nonattainment areas if
a regional emissions analysis that satisfies the requirements of Sec.
93.122 and paragraphs (e) through (h) of this section demonstrates that
for each analysis year and for each of the pollutants described in
paragraph (d) of this section, one of the following requirements is met:
(1) The emissions predicted in the ``Action'' scenario are less than
the emissions predicted in the ``Baseline'' scenario, and this can be
reasonably expected to be true in the periods between the analysis
years; or
(2) The emissions predicted in the ``Action'' scenario are not
greater than baseline emissions. Baseline emissions are those estimated
to have occurred during calendar year 1990, unless the conformity
implementation plan revision required by Sec. 51.390 of this chapter
defines the baseline emissions for a PM<INF>10</INF> area to be those
occurring in a different calendar year for which a baseline emissions
inventory was developed for the purpose of developing a control strategy
implementation plan.
(d) Pollutants. The regional emissions analysis must be performed
for the following pollutants:
(1) VOC in ozone areas;
(2) NO<INF>X</INF> in ozone areas, unless the EPA Administrator
determines that additional reductions of NO<INF>X</INF> would not
contribute to attainment;
(3) CO in CO areas;
(4) PM<INF>10</INF> in PM<INF>10</INF> areas;
(5) Transportation-related precursors of PM<INF>10</INF> in
PM<INF>10</INF> nonattainment and maintenance areas if the EPA Regional
Administrator or the director of the State air agency has made a finding
that such precursor emissions from within the area are a significant
contributor to the PM<INF>10</INF> nonattainment problem and has so
notified the MPO and DOT; and
(6) NO<INF>X</INF> in NO<INF>2</INF> areas.
(e) Analysis years. The regional emissions analysis must be
performed for analysis years that are no more than ten years apart. The
first analysis year must be no more than five years beyond the year in
which the conformity determination is being made. The last year of
transportation plan's forecast period must also be an analysis year.
(f) ``Baseline'' scenario. The regional emissions analysis required
by paragraphs (b) and (c) of this section must estimate the emissions
that would result from the ``Baseline'' scenario in each analysis year.
The ``Baseline'' scenario must be defined for each of the analysis
years. The ``Baseline'' scenario is the future transportation system
that will result from current programs, including the following (except
that exempt projects listed in Sec. 93.126 and projects exempt from
regional emissions analysis as listed in Sec. 93.127 need not be
explicitly considered):
(1) All in-place regionally significant highway and transit
facilities, services and activities;
(2) All ongoing travel demand management or transportation system
management activities; and
(3) Completion of all regionally significant projects, regardless of
funding source, which are currently under construction or are undergoing
right-of-way acquisition (except for hardship acquisition and protective
buying); come from the first year of the previously conforming
transportation plan and/or TIP; or have completed the NEPA process.
(g) ``Action'' scenario. The regional emissions analysis required by
paragraphs (b) and (c) of this section must
[[Page 572]]
estimate the emissions that would result from the ``Action'' scenario in
each analysis year. The ``Action'' scenario must be defined for each of
the analysis years. The ``Action'' scenario is the transportation system
that would result from the implementation of the proposed action
(transportation plan, TIP, or project not from a conforming
transportation plan and TIP) and all other expected regionally
significant projects in the nonattainment area. The ``Action'' scenario
must include the following (except that exempt projects listed in Sec.
93.126 and projects exempt from regional emissions analysis as listed in
Sec. 93.127 need not be explicitly considered):
(1) All facilities, services, and activities in the ``Baseline''
scenario;
(2) Completion of all TCMs and regionally significant projects
(including facilities, services, and activities) specifically identified
in the proposed transportation plan which will be operational or in
effect in the analysis year, except that regulatory TCMs may not be
assumed to begin at a future time unless the regulation is already
adopted by the enforcing jurisdiction or the TCM is identified in the
applicable implementation plan;
(3) All travel demand management programs and transportation system
management activities known to the MPO, but not included in the
applicable implementation plan or utilizing any Federal funding or
approval, which have been fully adopted and/or funded by the enforcing
jurisdiction or sponsoring agency since the last conformity
determination;
(4) The incremental effects of any travel demand management programs
and transportation system management activities known to the MPO, but
not included in the applicable implementation plan or utilizing any
Federal funding or approval, which were adopted and/or funded prior to
the date of the last conformity determination, but which have been
modified since then to be more stringent or effective;
(5) Completion of all expected regionally significant highway and
transit projects which are not from a conforming transportation plan and
TIP; and
(6) Completion of all expected regionally significant non-FHWA/FTA
highway and transit projects that have clear funding sources and
commitments leading toward their implementation and completion by the
analysis year.
(h) Projects not from a conforming transportation plan and TIP. For
the regional emissions analysis required by paragraphs (b) and (c) of
this section, if the project which is not from a conforming
transportation plan and TIP is a modification of a project currently in
the plan or TIP, the `Baseline' scenario must include the project with
its original design concept and scope, and the `Action' scenario must
include the project with its new design concept and scope.
Effective Date Note: At 69 FR 44079, July 1, 2004, Sec. 93.119 was
amended by:
a. Revising the section heading and paragraphs (a) and (b);
b. Redesignating paragraphs (c), (d), (e), (f), (g) and (h) as
paragraphs (d), (f), (g), (h), (i) and (j);
c. Adding new paragraphs (c) and (e);
d. Revising newly redesignated paragraphs (d) introductory text and
(d)(1);
e. Revising newly redesignated paragraph (f)(5), removing the period
at the end of newly redesignated paragraph (f)(6) and adding a semicolon
in its place, and adding new paragraphs (f)(7) and (f)(8);
f. Revising newly redesignated paragraph (g);
g. In newly redesignated paragraphs (h) introductory text and (i)
introductory text, revising the reference ``paragraphs (b) and (c)'' to
read ``paragraphs (b) through (e)''; and,
h. In newly redesignated paragraph (j), revising the reference
``paragraphs (b) and (c)'' to read ``paragraphs (b) through (e)'',
effective Aug. 2, 2004. For the convenience of the user, the added and
revised text is set forth as follows:
Sec. 93.119 Criteria and procedures: Interim emissions in areas
without motor vehicle emissions budgets.
(a) The transportation plan, TIP, and project not from a conforming
transportation plan and TIP must satisfy the interim emissions test(s)
as described in Sec. 93.109(c) through (l). This criterion applies to
the net effect of the action (transportation plan, TIP, or project not
from a conforming plan and TIP) on motor vehicle emissions from the
entire transportation system.
(b) Ozone areas. The requirements of this paragraph apply to all 1-
hour ozone and 8-hour ozone NAAQS areas, except for certain
[[Page 573]]
requirements as indicated. This criterion may be met:
(1) In moderate and above ozone nonattainment areas that are subject
to the reasonable further progress requirements of CAA section 182(b)(1)
if a regional emissions analysis that satisfies the requirements of
Sec. 93.122 and paragraphs (g) through (j) of this section demonstrates
that for each analysis year and for each of the pollutants described in
paragraph (f) of this section:
(i) The emissions predicted in the ``Action'' scenario are less than
the emissions predicted in the ``Baseline'' scenario, and this can be
reasonably expected to be true in the periods between the analysis
years; and
(ii) The emissions predicted in the ``Action'' scenario are lower
than:
(A) 1990 emissions by any nonzero amount, in areas for the 1-hour
ozone NAAQS as described in Sec. 93.109(c); or
(B) 2002 emissions by any nonzero amount, in areas for the 8-hour
ozone NAAQS as described in Sec. 93.109(d) and (e).
(2) In marginal and below ozone nonattainment areas and other ozone
nonattainment areas that are not subject to the reasonable further
progress requirements of CAA section 182(b)(1) if a regional emissions
analysis that satisfies the requirements of Sec. 93.122 and paragraphs
(g) through (j) of this section demonstrates that for each analysis year
and for each of the pollutants described in paragraph (f) of this
section:
(i) The emissions predicted in the ``Action'' scenario are not
greater than the emissions predicted in the ``Baseline'' scenario, and
this can be reasonably expected to be true in the periods between the
analysis years; or
(ii) The emissions predicted in the ``Action'' scenario are not
greater than:
(A) 1990 emissions, in areas for the 1-hour ozone NAAQS as described
in Sec. 93.109(c); or
(B) 2002 emissions, in areas for the 8-hour ozone NAAQS as described
in Sec. 93.109(d) and (e).
(c) CO areas. This criterion may be met:
(1) In moderate areas with design value greater than 12.7 ppm and
serious CO nonattainment areas that are subject to CAA section 187(a)(7)
if a regional emissions analysis that satisfies the requirements of
Sec. 93.122 and paragraphs (g) through (j) of this section demonstrates
that for each analysis year and for each of the pollutants described in
paragraph (f) of this section:
(i) The emissions predicted in the ``Action'' scenario are less than
the emissions predicted in the ``Baseline'' scenario, and this can be
reasonably expected to be true in the periods between the analysis
years; and
(ii) The emissions predicted in the ``Action'' scenario are lower
than 1990 emissions by any nonzero amount.
(2) In moderate areas with design value less than 12.7 ppm and not
classified CO nonattainment areas if a regional emissions analysis that
satisfies the requirements of Sec. 93.122 and paragraphs (g) through
(j) of this section demonstrates that for each analysis year and for
each of the pollutants described in paragraph (f) of this section:
(i) The emissions predicted in the ``Action'' scenario are not
greater than the emissions predicted in the ``Baseline'' scenario, and
this can be reasonably expected to be true in the periods between the
analysis years; or
(ii) The emissions predicted in the ``Action'' scenario are not
greater than 1990 emissions.
(d) PM10 and NO2 areas. This criterion may be met in PM<INF>10</INF>
and NO<INF>2</INF> nonattainment areas if a regional emissions analysis
that satisfies the requirements of Sec. 93.122 and paragraphs (g)
through (j) of this section demonstrates that for each analysis year and
for each of the pollutants described in paragraph (f) of this section,
one of the following requirements is met:
(1) The emissions predicted in the ``Action'' scenario are not
greater than the emissions predicted in the ``Baseline'' scenario, and
this can be reasonably expected to be true in the periods between the
analysis years; or
* * * * *
(e) PM2.5 areas. This criterion may be met in PM<INF>2.5</INF>
nonattainment areas if a regional emissions analysis that satisfies the
requirements of Sec. 93.122 and paragraphs (g) through (j) of this
section demonstrates that for each analysis year and for each of the
pollutants described in paragraph (f) of this section, one of the
following requirements is met:
(1) The emissions predicted in the ``Action'' scenario are not
greater than the emissions predicted in the ``Baseline'' scenario, and
this can be reasonably expected to be true in the periods between the
analysis years; or
(2) The emissions predicted in the ``Action'' scenario are not
greater than 2002 emissions.
(f) * * *
(5) VOC and/or NO<INF>X</INF> in PM<INF>10</INF> areas if the EPA
Regional Administrator or the director of the State air agency has made
a finding that one or both of such precursor emissions from within the
area are a significant contributor to the PM<INF>10</INF> nonattainment
problem and has so notified the MPO and DOT;
(6) * * *
(7) PM<INF>2.5</INF> in PM<INF>2.5</INF> areas; and
(8) Reentrained road dust in PM<INF>2.5</INF> areas only if the EPA
Regional Administrator or the director of the State air agency has made
a finding that emissions from reentrained road dust within the area are
a significant contributor to the PM<INF>2.5</INF> nonattainment problem
and has so notified the MPO and DOT.
(g) Analysis years. (1) The regional emissions analysis must be
performed for analysis years that are no more than ten years apart. The
first analysis year must be no more than five years beyond the year in
[[Page 574]]
which the conformity determination is being made. The last year of the
transportation plan's forecast period must also be an analysis year.
(2) For areas using paragraphs (b)(2)(i), (c)(2)(i), (d)(1), and
(e)(1) of this section, a regional emissions analysis that satisfies the
requirements of Sec. 93.122 and paragraphs (g) through (j) of this
section would not be required for analysis years in which the
transportation projects and planning assumptions in the ``Action'' and
``Baseline'' scenarios are exactly the same. In such a case, paragraph
(a) of this section can be satisfied by documenting that the
transportation projects and planning assumptions in both scenarios are
exactly the same, and consequently, the emissions predicted in the
``Action'' scenario are not greater than the emissions predicted in the
``Baseline'' scenario for such analysis years.
* * * * *
Sec. 93.120 Consequences of control strategy implementation plan
failures.
(a) Disapprovals. (1) If EPA disapproves any submitted control
strategy implementation plan revision (with or without a protective
finding), the conformity status of the transportation plan and TIP shall
lapse on the date that highway sanctions as a result of the disapproval
are imposed on the nonattainment area under section 179(b)(1) of the
CAA. No new transportation plan, TIP, or project may be found to conform
until another control strategy implementation plan revision fulfilling
the same CAA requirements is submitted and conformity to this submission
is determined.
(2) If EPA disapproves a submitted control strategy implementation
plan revision without making a protective finding, then beginning 120
days after such disapproval, only projects in the first three years of
the currently conforming transportation plan and TIP may be found to
conform. This means that beginning 120 days after disapproval without a
protective finding, no transportation plan, TIP, or project not in the
first three years of the currently conforming plan and TIP may be found
to conform until another control strategy implementation plan revision
fulfilling the same CAA requirements is submitted and conformity to this
submission is determined. During the first 120 days following EPA's
disapproval without a protective finding, transportation plan, TIP, and
project conformity determinations shall be made using the motor vehicle
emissions budget(s) in the disapproved control strategy implementation
plan, unless another control strategy implementation plan revision has
been submitted and its motor vehicle emissions budget(s) applies for
transportation conformity purposes, pursuant to Sec. 93.109.
(3) In disapproving a control strategy implementation plan revision,
EPA would give a protective finding where a submitted plan contains
adopted control measures or written commitments to adopt enforceable
control measures that fully satisfy the emissions reductions
requirements relevant to the statutory provision for which the
implementation plan revision was submitted, such as reasonable further
progress or attainment.
(b) Failure to submit and incompleteness. In areas where EPA
notifies the State, MPO, and DOT of the State's failure to submit a
control strategy implementation plan or submission of an incomplete
control strategy implementation plan revision (either of which initiates
the sanction process under CAA sections 179 or 110(m)), the conformity
status of the transportation plan and TIP shall lapse on the date that
highway sanctions are imposed on the nonattainment area for such failure
under section 179(b)(1) of the CAA, unless the failure has been remedied
and acknowledged by a letter from the EPA Regional Administrator.
(c) Federal implementation plans. If EPA promulgates a Federal
implementation plan that contains motor vehicle emissions budget(s) as a
result of a State failure, the conformity lapse imposed by this section
because of that State failure is removed.
Effective Date Note: At 69 FR 44080, July 1, 2004, Sec. 93.120 was
amended by revising paragraph (a)(2), effective Aug. 2, 2004. For the
convenience of the user, the revised text is set forth as follows:
Sec. 93.120 Consequences of control strategy implementation plan
failures.
(a) * * *
(2) If EPA disapproves a submitted control strategy implementation
plan revision without making a protective finding, only
[[Page 575]]
projects in the first three years of the currently conforming
transportation plan and TIP may be found to conform. This means that
beginning on the effective date of a disapproval without a protective
finding, no transportation plan, TIP, or project not in the first three
years of the currently conforming transportation plan and TIP may be
found to conform until another control strategy implementation plan
revision fulfilling the same CAA requirements is submitted, EPA finds
its motor vehicle emissions budget(s) adequate pursuant to Sec. 93.118
or approves the submission, and conformity to the implementation plan
revision is determined.
* * * * *
Sec. 93.121 Requirements for adoption or approval of projects by other
recipients of funds designated under title 23 U.S.C. or the
Federal Transit Laws.
(a) Except as provided in paragraph (b) of this section, no
recipient of Federal funds designated under title 23 U.S.C. or the
Federal Transit Laws shall adopt or approve a regionally significant
highway or transit project, regardless of funding source, unless the
recipient finds that the requirements of one of the following are met:
(1) The project was included in the first three years of the most
recently conforming transportation plan and TIP (or the conformity
determination's regional emissions analyses), even if conformity status
is currently lapsed; and the project's design concept and scope has not
changed significantly from those analyses; or
(2) There is a currently conforming transportation plan and TIP, and
a new regional emissions analysis including the project and the
currently conforming transportation plan and TIP demonstrates that the
transportation plan and TIP would still conform if the project were
implemented (consistent with the requirements of Sec. Sec. 93.118 and/
or 93.119 for a project not from a conforming transportation plan and
TIP).
(b) In isolated rural nonattainment and maintenance areas subject to
Sec. 93.109(g), no recipient of Federal funds designated under title 23
U.S.C. or the Federal Transit Laws shall adopt or approve a regionally
significant highway or transit project, regardless of funding source,
unless the recipient finds that the requirements of one of the following
are met:
(1) The project was included in the regional emissions analysis
supporting the most recent conformity determination for the portion of
the statewide transportation plan and TIP which are in the nonattainment
or maintenance area, and the project's design concept and scope has not
changed significantly; or
(2) A new regional emissions analysis including the project and all
other regionally significant projects expected in the nonattainment or
maintenance area demonstrates that those projects in the statewide
transportation plan and statewide TIP which are in the nonattainment or
maintenance area would still conform if the project were implemented
(consistent with the requirements of Sec. Sec. 93.118 and/or 93.119 for
projects not from a conforming transportation plan and TIP).
Effective Date Note: At 69 FR 44080, July 1, 2004, Sec. 93.121 was
amended by revising paragraph (a)(1), redesignating paragraph (a)(2) as
(a)(3), adding a new paragraph (a)(2) and revising newly redesignated
paragraph (a)(3); amending paragraph (b) introductory text by removing
the reference ``Sec. 93.109(g)'' and adding in its place a reference
for ``Sec. 93.109(l)'', and revising paragraph (b)(1); and adding new
paragraph (c), effective Aug. 2, 2004. For the convenience of the user,
the added and revised text is set forth as follows:
Sec. 93.121 Requirements for adoption or approval of projects by other
recipients of funds designated under title 23 U.S.C. or the
Federal Transit Laws.
(a) * * *
(1) The project comes from the currently conforming transportation
plan and TIP, and the project's design concept and scope have not
changed significantly from those which were included in the regional
emissions analysis for that transportation plan and TIP;
(2) The project is included in the regional emissions analysis for
the currently conforming transportation plan and TIP conformity
determination (even if the project is not strictly included in the
transportation plan or TIP for the purpose of MPO project selection or
endorsement) and the project's design concept and scope have not changed
significantly from those which were included in the regional emissions
analysis; or
(3) A new regional emissions analysis including the project and the
currently conforming transportation plan and TIP demonstrates that the
transportation plan and TIP would still conform if the project were
[[Page 576]]
implemented (consistent with the requirements of Sec. Sec. 93.118 and/
or 93.119 for a project not from a conforming transportation plan and
TIP).
(b) * * *
(1) The project was included in the regional emissions analysis
supporting the most recent conformity determination that reflects the
portion of the statewide transportation plan and statewide TIP which are
in the nonattainment or maintenance area, and the project's design
concept and scope has not changed significantly; or
* * * * *
(c) Notwithstanding paragraphs (a) and (b) of this section, in
nonattainment and maintenance areas subject to Sec. 93.109(j) or (k)
for a given pollutant/precursor and NAAQS, no recipient of Federal funds
designated under title 23 U.S.C. or the Federal Transit Laws shall adopt
or approve a regionally significant highway or transit project,
regardless of funding source, unless the recipient finds that the
requirements of one of the following are met for that pollutant/
precursor and NAAQS:
(1) The project was included in the most recent conformity
determination for the transportation plan and TIP and the project's
design concept and scope has not changed significantly; or
(2) The project was included in the most recent conformity
determination that reflects the portion of the statewide transportation
plan and statewide TIP which are in the nonattainment or maintenance
area, and the project's design concept and scope has not changed
significantly.
Sec. 93.122 Procedures for determining regional transportation-related
emissions.
(a) General requirements. (1) The regional emissions analysis
required by Sec. Sec. 93.118 and 93.119 for the transportation plan,
TIP, or project not from a conforming plan and TIP must include all
regionally significant projects expected in the nonattainment or
maintenance area. The analysis shall include FHWA/FTA projects proposed
in the transportation plan and TIP and all other regionally significant
projects which are disclosed to the MPO as required by Sec. 93.105.
Projects which are not regionally significant are not required to be
explicitly modeled, but vehicle miles traveled (VMT) from such projects
must be estimated in accordance with reasonable professional practice.
The effects of TCMs and similar projects that are not regionally
significant may also be estimated in accordance with reasonable
professional practice.
(2) The emissions analysis may not include for emissions reduction
credit any TCMs or other measures in the applicable implementation plan
which have been delayed beyond the scheduled date(s) until such time as
their implementation has been assured. If the measure has been partially
implemented and it can be demonstrated that it is providing quantifiable
emission reduction benefits, the emissions analysis may include that
emissions reduction credit.
(3) Emissions reduction credit from projects, programs, or
activities which require a regulatory action in order to be implemented
may not be included in the emissions analysis unless:
(i) The regulatory action is already adopted by the enforcing
jurisdiction;
(ii) The project, program, or activity is included in the applicable
implementation plan;
(iii) The control strategy implementation plan submission or
maintenance plan submission that establishes the motor vehicle emissions
budget(s) for the purposes of Sec. 93.118 contains a written commitment
to the project, program, or activity by the agency with authority to
implement it; or
(iv) EPA has approved an opt-in to a Federally enforced program, EPA
has promulgated the program (if the control program is a Federal
responsibility, such as vehicle tailpipe standards), or the Clean Air
Act requires the program without need for individual State action and
without any discretionary authority for EPA to set its stringency, delay
its effective date, or not implement the program.
(4) Emissions reduction credit from control measures that are not
included in the transportation plan and TIP and that do not require a
regulatory action in order to be implemented may not be included in the
emissions analysis unless the conformity determination includes written
commitments to implementation from the appropriate entities.
(i) Persons or entities voluntarily committing to control measures
must comply with the obligations of such commitments.
[[Page 577]]
(ii) The conformity implementation plan revision required in Sec.
51.390 of this chapter must provide that written commitments to control
measures that are not included in the transportation plan and TIP must
be obtained prior to a conformity determination and that such
commitments must be fulfilled.
(5) A regional emissions analysis for the purpose of satisfying the
requirements of Sec. 93.119 must make the same assumptions in both the
``Baseline'' and ``Action'' scenarios regarding control measures that
are external to the transportation system itself, such as vehicle
tailpipe or evaporative emission standards, limits on gasoline
volatility, vehicle inspection and maintenance programs, and oxygenated
or reformulated gasoline or diesel fuel.
(6) The ambient temperatures used for the regional emissions
analysis shall be consistent with those used to establish the emissions
budget in the applicable implementation plan. All other factors, for
example the fraction of travel in a hot stabilized engine mode, must be
consistent with the applicable implementation plan, unless modified
after interagency consultation according to Sec. 93.105(c)(1)(i) to
incorporate additional or more geographically specific information or
represent a logically estimated trend in such factors beyond the period
considered in the applicable implementation plan.
(7) Reasonable methods shall be used to estimate nonattainment or
maintenance area VMT on off-network roadways within the urban
transportation planning area, and on roadways outside the urban
transportation planning area.
(b) Regional emissions analysis in serious, severe, and extreme
ozone nonattainment areas and serious CO nonattainment areas must meet
the requirements of paragraphs (b) (1) through (3) of this section if
their metropolitan planning area contains an urbanized area population
over 200,000.
(1) By January 1, 1997, estimates of regional transportation-related
emissions used to support conformity determinations must be made at a
minimum using network-based travel models according to procedures and
methods that are available and in practice and supported by current and
available documentation. These procedures, methods, and practices are
available from DOT and will be updated periodically. Agencies must
discuss these modeling procedures and practices through the interagency
consultation process, as required by Sec. 93.105(c)(1)(i). Network-
based travel models must at a minimum satisfy the following
requirements:
(i) Network-based travel models must be validated against observed
counts (peak and off-peak, if possible) for a base year that is not more
than 10 years prior to the date of the conformity determination. Model
forecasts must be analyzed for reasonableness and compared to historical
trends and other factors, and the results must be documented;
(ii) Land use, population, employment, and other network-based
travel model assumptions must be documented and based on the best
available information;
(iii) Scenarios of land development and use must be consistent with
the future transportation system alternatives for which emissions are
being estimated. The distribution of employment and residences for
different transportation options must be reasonable;
(iv) A capacity-sensitive assignment methodology must be used, and
emissions estimates must be based on a methodology which differentiates
between peak and off-peak link volumes and speeds and uses speeds based
on final assigned volumes;
(v) Zone-to-zone travel impedances used to distribute trips between
origin and destination pairs must be in reasonable agreement with the
travel times that are estimated from final assigned traffic volumes.
Where use of transit currently is anticipated to be a significant factor
in satisfying transportation demand, these times should also be used for
modeling mode splits; and
(vi) Network-based travel models must be reasonably sensitive to
changes in the time(s), cost(s), and other factors affecting travel
choices.
(2) Reasonable methods in accordance with good practice must be used
to estimate traffic speeds and delays in a
[[Page 578]]
manner that is sensitive to the estimated volume of travel on each
roadway segment represented in the network-based travel model.
(3) Highway Performance Monitoring System (HPMS) estimates of
vehicle miles traveled (VMT) shall be considered the primary measure of
VMT within the portion of the nonattainment or maintenance area and for
the functional classes of roadways included in HPMS, for urban areas
which are sampled on a separate urban area basis. For areas with
network-based travel models, a factor (or factors) may be developed to
reconcile and calibrate the network-based travel model estimates of VMT
in the base year of its validation to the HPMS estimates for the same
period. These factors may then be applied to model estimates of future
VMT. In this factoring process, consideration will be given to
differences between HPMS and network-based travel models, such as
differences in the facility coverage of the HPMS and the modeled network
description. Locally developed count- based programs and other
departures from these procedures are permitted subject to the
interagency consultation procedures of Sec. 93.105(c)(1)(i).
(c) In all areas not otherwise subject to paragraph (b) of this
section, regional emissions analyses must use those procedures described
in paragraph (b) of this section if the use of those procedures has been
the previous practice of the MPO. Otherwise, areas not subject to
paragraph (b) of this section may estimate regional emissions using any
appropriate methods that account for VMT growth by, for example,
extrapolating historical VMT or projecting future VMT by considering
growth in population and historical growth trends for VMT per person.
These methods must also consider future economic activity, transit
alternatives, and transportation system policies.
(d) PM10 from construction-related fugitive dust. (1) For areas in
which the implementation plan does not identify construction-related
fugitive PM<INF>10</INF> as a contributor to the nonattainment problem,
the fugitive PM<INF>10</INF> emissions associated with highway and
transit project construction are not required to be considered in the
regional emissions analysis.
(2) In PM<INF>10</INF> nonattainment and maintenance areas with
implementation plans which identify construction-related fugitive
PM<INF>10</INF> as a contributor to the nonattainment problem, the
regional PM<INF>10</INF> emissions analysis shall consider construction-
related fugitive PM<INF>10</INF> and shall account for the level of
construction activity, the fugitive PM<INF>10</INF> control measures in
the applicable implementation plan, and the dust-producing capacity of
the proposed activities.
(e) Reliance on previous regional emissions analysis. (1) The TIP
may be demonstrated to satisfy the requirements of Sec. Sec. 93.118
(``Motor vehicle emissions budget'') or 93.119 (``Emission reductions in
areas without motor vehicle emissions budgets'') without new regional
emissions analysis if the regional emissions analysis already performed
for the plan also applies to the TIP. This requires a demonstration
that:
(i) The TIP contains all projects which must be started in the TIP's
timeframe in order to achieve the highway and transit system envisioned
by the transportation plan;
(ii) All TIP projects which are regionally significant are included
in the transportation plan with design concept and scope adequate to
determine their contribution to the transportation plan's regional
emissions at the time of the transportation plan's conformity
determination; and
(iii) The design concept and scope of each regionally significant
project in the TIP is not significantly different from that described in
the transportation plan.
(2) A project which is not from a conforming transportation plan and
a conforming TIP may be demonstrated to satisfy the requirements of
Sec. 93.118 or Sec. 93.119 without additional regional emissions
analysis if allocating funds to the project will not delay the
implementation of projects in the transportation plan or TIP which are
necessary to achieve the highway and transit system envisioned by the
transportation plan, and if the project is either:
(i) Not regionally significant; or
[[Page 579]]
(ii) Included in the conforming transportation plan (even if it is
not specifically included in the latest conforming TIP) with design
concept and scope adequate to determine its contribution to the
transportation plan's regional emissions at the time of the
transportation plan's conformity determination, and the design concept
and scope of the project is not significantly different from that
described in the transportation plan.
Effective Date Note: At 69 FR 44080, July 1, 2004, Sec. 93.122 was
amended by redesignating paragraphs (c), (d), and (e) as paragraphs (d),
(e) and (g), respectively; adding new paragraphs (c) and (f); and
revising newly redesignated paragraphs (g)(1) and (g)(2) introductory
text, and adding new paragraph (g)(3), effective Aug. 2, 2004. For the
convenience of the user, the added and revised text is set forth as
follows:
Sec. 93.122 Procedures for determining regional transportation-related
emissions.
* * * * *
(c) Two-year grace period for regional emissions analysis
requirements in certain ozone and CO areas. The requirements of
paragraph (b) of this section apply to such areas or portions of such
areas that have not previously been required to meet these requirements
for any existing NAAQS two years from the following:
(1) The effective date of EPA's reclassification of an ozone or CO
nonattainment area that has an urbanized area population greater than
200,000 to serious or above;
(2) The official notice by the Census Bureau that determines the
urbanized area population of a serious or above ozone or CO
nonattainment area to be greater than 200,000; or,
(3) The effective date of EPA's action that classifies a newly
designated ozone or CO nonattainment area that has an urbanized area
population greater than 200,000 as serious or above.
* * * * *
(f) PM2.5 from construction-related fugitive dust. (1) For
PM<INF>2.5</INF> areas in which the implementation plan does not
identify construction-related fugitive PM<INF>2.5</INF> as a significant
contributor to the nonattainment problem, the fugitive PM<INF>2.5</INF>
emissions associated with highway and transit project construction are
not required to be considered in the regional emissions analysis.
(2) In PM<INF>2.5</INF> nonattainment and maintenance areas with
implementation plans which identify construction-related fugitive
PM<INF>2.5</INF> as a significant contributor to the nonattainment
problem, the regional PM<INF>2.5</INF> emissions analysis shall consider
construction-related fugitive PM<INF>2.5</INF> and shall account for the
level of construction activity, the fugitive PM<INF>2.5</INF> control
measures in the applicable implementation plan, and the dust-producing
capacity of the proposed activities.
(g) * * *
(1) Conformity determinations for a new transportation plan and/or
TIP may be demonstrated to satisfy the requirements of Sec. Sec. 93.118
(``Motor vehicle emissions budget'') or 93.119 (``Interim emissions in
areas without motor vehicle emissions budgets'') without new regional
emissions analysis if the previous regional emissions analysis also
applies to the new plan and/or TIP. This requires a demonstration that:
(i) The new plan and/or TIP contain all projects which must be
started in the plan and TIP's timeframes in order to achieve the highway
and transit system envisioned by the transportation plan;
(ii) All plan and TIP projects which are regionally significant are
included in the transportation plan with design concept and scope
adequate to determine their contribution to the transportation plan's
and/or TIP's regional emissions at the time of the previous conformity
determination;
(iii) The design concept and scope of each regionally significant
project in the new plan and/or TIP are not significantly different from
that described in the previous transportation plan; and
(iv) The previous regional emissions analysis is consistent with the
requirements of Sec. Sec. 93.118 (including that conformity to all
currently applicable budgets is demonstrated) and/or 93.119, as
applicable.
(2) A project which is not from a conforming transportation plan and
a conforming TIP may be demonstrated to satisfy the requirements of
Sec. 93.118 or Sec. 93.119 without additional regional emissions
analysis if allocating funds to the project will not delay the
implementation of projects in the transportation plan or TIP which are
necessary to achieve the highway and transit system envisioned by the
transportation plan, the previous regional emissions analysis is still
consistent with the requirements of Sec. 93.118 (including that
conformity to all currently applicable budgets is demonstrated) and/or
Sec. 93.119, as applicable, and if the project is either:
* * * * *
(3) A conformity determination that relies on paragraph (g) of this
section does not satisfy the frequency requirements of Sec. 93.104(b)
or (c).
[[Page 580]]
Sec. 93.123 Procedures for determining localized CO and
PM<INF>10</INF> concentrations (hot-spot analysis).
(a) CO hot-spot analysis. (1) The demonstrations required by Sec.
93.116 (``Localized CO and PM<INF>10</INF> violations'') must be based
on quantitative analysis using the applicable air quality models, data
bases, and other requirements specified in 40 CFR part 51, Appendix W
(Guideline on Air Quality Models). These procedures shall be used in the
following cases, unless different procedures developed through the
interagency consultation process required in Sec. 93.105 and approved
by the EPA Regional Administrator are used:
(i) For projects in or affecting locations, areas, or categories of
sites which are identified in the applicable implementation plan as
sites of violation or possible violation;
(ii) For projects affecting intersections that are at Level-of-
Service D, E, or F, or those that will change to Level-of-Service D, E,
or F because of increased traffic volumes related to the project;
(iii) For any project affecting one or more of the top three
intersections in the nonattainment or maintenance area with highest
traffic volumes, as identified in the applicable implementation plan;
and
(iv) For any project affecting one or more of the top three
intersections in the nonattainment or maintenance area with the worst
level of service, as identified in the applicable implementation plan.
(2) In cases other than those described in paragraph (a)(1) of this
section, the demonstrations required by Sec. 93.116 may be based on
either:
(i) Quantitative methods that represent reasonable and common
professional practice; or
(ii) A qualitative consideration of local factors, if this can
provide a clear demonstration that the requirements of Sec. 93.116 are
met.
(b) PM10 hot-spot analysis. (1) The hot-spot demonstration required
by Sec. 93.116 must be based on quantitative analysis methods for the
following types of projects:
(i) Projects which are located at sites at which violations have
been verified by monitoring;
(ii) Projects which are located at sites which have vehicle and
roadway emission and dispersion characteristics that are essentially
identical to those of sites with verified violations (including sites
near one at which a violation has been monitored); and
(iii) New or expanded bus and rail terminals and transfer points
which increase the number of diesel vehicles congregating at a single
location.
(2) Where quantitative analysis methods are not required, the
demonstration required by Sec. 93.116 may be based on a qualitative
consideration of local factors.
(3) The identification of the sites described in paragraph (b)(1)
(i) and (ii) of this section, and other cases where quantitative methods
are appropriate, shall be determined through the interagency
consultation process required in Sec. 93.105. DOT may choose to make a
categorical conformity determination on bus and rail terminals or
transfer points based on appropriate modeling of various terminal sizes,
configurations, and activity levels.
(4) The requirements for quantitative analysis contained in this
paragraph (b) will not take effect until EPA releases modeling guidance
on this subject and announces in the Federal Register that these
requirements are in effect.
(c) General requirements. (1) Estimated pollutant concentrations
must be based on the total emissions burden which may result from the
implementation of the project, summed together with future background
concentrations. The total concentration must be estimated and analyzed
at appropriate receptor locations in the area substantially affected by
the project.
(2) Hot-spot analyses must include the entire project, and may be
performed only after the major design features which will significantly
impact concentrations have been identified. The future background
concentration should be estimated by multiplying current background by
the ratio of future to current traffic and the ratio of future to
current emission factors.
(3) Hot-spot analysis assumptions must be consistent with those in
the regional emissions analysis for those
[[Page 581]]
inputs which are required for both analyses.
(4) PM<INF>10</INF> or CO mitigation or control measures shall be
assumed in the hot-spot analysis only where there are written
commitments from the project sponsor and/or operator to implement such
measures, as required by Sec. 93.125(a).
(5) CO and PM<INF>10</INF> hot-spot analyses are not required to
consider construction-related activities which cause temporary increases
in emissions. Each site which is affected by construction-related
activities shall be considered separately, using established
``Guideline'' methods. Temporary increases are defined as those which
occur only during the construction phase and last five years or less at
any individual site.
Sec. 93.124 Using the motor vehicle emissions budget in the applicable
implementation plan (or implementation plan submission).
(a) In interpreting an applicable implementation plan (or
implementation plan submission) with respect to its motor vehicle
emissions budget(s), the MPO and DOT may not infer additions to the
budget(s) that are not explicitly intended by the implementation plan
(or submission). Unless the implementation plan explicitly quantifies
the amount by which motor vehicle emissions could be higher while still
allowing a demonstration of compliance with the milestone, attainment,
or maintenance requirement and explicitly states an intent that some or
all of this additional amount should be available to the MPO and DOT in
the emissions budget for conformity purposes, the MPO may not interpret
the budget to be higher than the implementation plan's estimate of
future emissions. This applies in particular to applicable
implementation plans (or submissions) which demonstrate that after
implementation of control measures in the implementation plan:
(1) Emissions from all sources will be less than the total emissions
that would be consistent with a required demonstration of an emissions
reduction milestone;
(2) Emissions from all sources will result in achieving attainment
prior to the attainment deadline and/or ambient concentrations in the
attainment deadline year will be lower than needed to demonstrate
attainment; or
(3) Emissions will be lower than needed to provide for continued
maintenance.
(b) If an applicable implementation plan submitted before November
24, 1993, demonstrates that emissions from all sources will be less than
the total emissions that would be consistent with attainment and
quantifies that ``safety margin,'' the State may submit an
implementation plan revision which assigns some or all of this safety
margin to highway and transit mobile sources for the purposes of
conformity. Such an implementation plan revision, once it is endorsed by
the Governor and has been subject to a public hearing, may be used for
the purposes of transportation conformity before it is approved by EPA.
(c) A conformity demonstration shall not trade emissions among
budgets which the applicable implementation plan (or implementation plan
submission) allocates for different pollutants or precursors, or among
budgets allocated to motor vehicles and other sources, unless the
implementation plan establishes appropriate mechanisms for such trades.
(d) If the applicable implementation plan (or implementation plan
submission) estimates future emissions by geographic subarea of the
nonattainment area, the MPO and DOT are not required to consider this to
establish subarea budgets, unless the applicable implementation plan (or
implementation plan submission) explicitly indicates an intent to create
such subarea budgets for the purposes of conformity.
(e) If a nonattainment area includes more than one MPO, the
implementation plan may establish motor vehicle emissions budgets for
each MPO, or else the MPOs must collectively make a conformity
determination for the entire nonattainment area.
Effective Date Note: At 69 FR 44081, July 1, 2004, Sec. 93.124 was
amended by removing paragraph (b) and redesignating paragraphs (c)
through (e) as paragraphs (b) through (d), effective Aug. 2, 2004.
[[Page 582]]
Sec. 93.125 Enforceability of design concept and scope and project-
level mitigation and control measures.
(a) Prior to determining that a transportation project is in
conformity, the MPO, other recipient of funds designated under title 23
U.S.C. or the Federal Transit Laws, FHWA, or FTA must obtain from the
project sponsor and/or operator written commitments to implement in the
construction of the project and operation of the resulting facility or
service any project-level mitigation or control measures which are
identified as conditions for NEPA process completion with respect to
local PM<INF>10</INF> or CO impacts. Before a conformity determination
is made, written commitments must also be obtained for project-level
mitigation or control measures which are conditions for making
conformity determinations for a transportation plan or TIP and are
included in the project design concept and scope which is used in the
regional emissions analysis required by Sec. Sec. 93.118 (``Motor
vehicle emissions budget'') and 93.119 (``Emission reductions in areas
without motor vehicle emissions budgets'') or used in the project-level
hot-spot analysis required by Sec. 93.116.
(b) Project sponsors voluntarily committing to mitigation measures
to facilitate positive conformity determinations must comply with the
obligations of such commitments.
(c) The implementation plan revision required in Sec. 51.390 of
this chapter shall provide that written commitments to mitigation
measures must be obtained prior to a positive conformity determination,
and that project sponsors must comply with such commitments.
(d) If the MPO or project sponsor believes the mitigation or control
measure is no longer necessary for conformity, the project sponsor or
operator may be relieved of its obligation to implement the mitigation
or control measure if it can demonstrate that the applicable hot-spot
requirements of Sec. 93.116, emission budget requirements of Sec.
93.118, and emission reduction requirements of Sec. 93.119 are
satisfied without the mitigation or control measure, and so notifies the
agencies involved in the interagency consultation process required under
Sec. 93.105. The MPO and DOT must find that the transportation plan and
TIP still satisfy the applicable requirements of Sec. Sec. 93.118 and/
or 93.119 and that the project still satisfies the requirements of Sec.
93.116, and therefore that the conformity determinations for the
transportation plan, TIP, and project are still valid. This finding is
subject to the applicable public consultation requirements in Sec.
93.105(e) for conformity determinations for projects.
Effective Date Note: At 69 FR 44081, July 1, 2004, Sec. 93.125 was
amended by revising the reference ``93.119 (``Emissions reductions in
areas without motor vehicle emissions budgets'')'' to read ``93.119
(``Interim emissions in areas without motor vehicle emissions
budgets''),'' and paragraph (d) is amended by revising the phrase
``emission reduction requirements of Sec. 93.119'' to read ``interim
emissions requirements of Sec. 93.119.'', effective Aug. 2, 2004.
Sec. 93.126 Exempt projects.
Notwithstanding the other requirements of this subpart, highway and
transit projects of the types listed in Table 2 of this section are
exempt from the requirement to determine conformity. Such projects may
proceed toward implementation even in the absence of a conforming
transportation plan and TIP. A particular action of the type listed in
Table 2 of this section is not exempt if the MPO in consultation with
other agencies (see Sec. 93.105(c)(1)(iii)), the EPA, and the FHWA (in
the case of a highway project) or the FTA (in the case of a transit
project) concur that it has potentially adverse emissions impacts for
any reason. States and MPOs must ensure that exempt projects do not
interfere with TCM implementation. Table 2 follows:
Table 2--Exempt Projects
Safety
Railroad/highway crossing.
Hazard elimination program.
Safer non-Federal-aid system roads.
Shoulder improvements.
Increasing sight distance.
Safety improvement program.
Traffic control devices and operating assistance other than
signalization projects.
Railroad/highway crossing warning devices.
Guardrails, median barriers, crash cushions.
Pavement resurfacing and/or rehabilitation.
Pavement marking demonstration.
Emergency relief (23 U.S.C. 125).
Fencing.
[[Page 583]]
Skid treatments.
Safety roadside rest areas.
Adding medians.
Truck climbing lanes outside the urbanized area.
Lighting improvements.
Widening narrow pavements or reconstructing bridges (no additional
travel lanes).
Emergency truck pullovers.
Mass Transit
Operating assistance to transit agencies.
Purchase of support vehicles.
Rehabilitation of transit vehicles \1\.
Purchase of office, shop, and operating equipment for existing
facilities.
Purchase of operating equipment for vehicles (e.g., radios, fareboxes,
lifts, etc.).
Construction or renovation of power, signal, and communications systems.
Construction of small passenger shelters and information kiosks.
Reconstruction or renovation of transit buildings and structures (e.g.,
rail or bus buildings, storage and maintenance facilities, stations,
terminals, and ancillary structures).
Rehabilitation or reconstruction of track structures, track, and
trackbed in existing rights-of-way.
Purchase of new buses and rail cars to replace existing vehicles or for
minor expansions of the fleet \1\.
Construction of new bus or rail storage/maintenance facilities
categorically excluded in 23 CFR part 771.
Air Quality
Continuation of ride-sharing and van-pooling promotion activities at
current levels.
Bicycle and pedestrian facilities.
Other
Specific activities which do not involve or lead directly to
construction, such as:
Planning and technical studies.
Grants for training and research programs.
Planning activities conducted pursuant to titles 23 and 49 U.S.C.
Federal-aid systems revisions.
Engineering to assess social, economic, and environmental effects of the
proposed action or alternatives to that action.
Noise attenuation.
Emergency or hardship advance land acquisitions (23 CFR 712.204(d)).
Acquisition of scenic easements.
Plantings, landscaping, etc.
Sign removal.
Directional and informational signs.
Transportation enhancement activities (except rehabilitation and
operation of historic transportation buildings, structures, or
facilities).
Repair of damage caused by natural disasters, civil unrest, or terrorist
acts, except projects involving substantial functional, locational or
capacity changes.
Note: \1\In PM<INF>10</INF> nonattainment or maintenance areas, such
projects are exempt only if they are in compliance with control measures
in the applicable implementation plan.
Effective Date Note: At 69 FR 44081, July 1, 2004, Sec. 93.126 was
amended under the heading ``Other'' by revising the entry for
``Emergency or hardship advance land acquisitions (23 CFR 712.204(d))''
to read ``Emergency or hardship advance land acquisitions (23 CFR
710.503).'', effective Aug. 2, 2004.
Sec. 93.127 Projects exempt from regional emissions analyses.
Notwithstanding the other requirements of this subpart, highway and
transit projects of the types listed in Table 3 of this section are
exempt from regional emissions analysis requirements. The local effects
of these projects with respect to CO or PM<INF>10</INF> concentrations
must be considered to determine if a hot-spot analysis is required prior
to making a project-level conformity determination. These projects may
then proceed to the project development process even in the absence of a
conforming transportation plan and TIP. A particular action of the type
listed in Table 3 of this section is not exempt from regional emissions
analysis if the MPO in consultation with other agencies (see Sec.
93.105(c)(1)(iii)), the EPA, and the FHWA (in the case of a highway
project) or the FTA (in the case of a transit project) concur that it
has potential regional impacts for any reason. Table 3 follows:
Table 3--Projects Exempt From Regional Emissions Analyses
Intersection channelization projects.
Intersection signalization projects at individual intersections.
Interchange reconfiguration projects.
Changes in vertical and horizontal alignment.
Truck size and weight inspection stations.
Bus terminals and transfer points.
Sec. 93.128 Traffic signal synchronization projects.
Traffic signal synchronization projects may be approved, funded, and
implemented without satisfying the requirements of this subpart.
However,
[[Page 584]]
all subsequent regional emissions analyses required by Sec. Sec. 93.118
and 93.119 for transportation plans, TIPs, or projects not from a
conforming plan and TIP must include such regionally significant traffic
signal synchronization projects.
Sec. 93.129 Special exemptions from conformity requirements for pilot
program areas.
EPA and DOT may exempt no more than six areas for no more than three
years from certain requirements of this subpart if these areas are
selected to participate in a conformity pilot program and have developed
alternative requirements that have been approved by EPA as an
implementation plan revision in accordance with Sec. 51.390 of this
chapter. For the duration of the pilot program, areas selected to
participate in the pilot program must comply with the conformity
requirements of the pilot area's implementation plan revision for Sec.
51.390 of this chapter and all other requirements in 40 CFR parts 51 and
93 that are not covered by the pilot area's implementation plan revision
for Sec. 51.390 of this chapter. The alternative conformity
requirements in conjunction with any applicable state and/or federal
conformity requirements must be proposed to fulfill all of the
requirements of and achieve results equivalent to or better than section
176(c) of the Clean Air Act. After the three-year duration of the pilot
program has expired, areas will again be subject to all of the
requirements of this subpart and 40 CFR part 51, subpart T, and/or to
the requirements of any implementation plan revision that was previously
approved by EPA in accordance with Sec. 51.390 of this chapter.
[64 FR 13483, Mar. 18, 1999]
Subpart B_Determining Conformity of General Federal Actions to State or
Federal Implementation Plans
Source: 58 FR 63253, Nov. 30, 1993, unless otherwise noted.
Sec. 93.150 Prohibition.
(a) No department, agency or instrumentality of the Federal
Government shall engage in, support in any way or provide financial
assistance for, license or permit, or approve any activity which does
not conform to an applicable implementation plan.
(b) A Federal agency must make a determination that a Federal action
conforms to the applicable implementation plan in accordance with the
requirements of this subpart before the action is taken.
(c) Paragraph (b) of this section does not include Federal actions
where:
(1) A National Environmental Policy Act (NEPA) analysis was
completed as evidenced by a final environmental assessment (EA),
environmental impact statement (EIS), or finding of no significant
impact (FONSI) that was prepared prior to January 31, 1994; or
(2)(i) Prior to January 31, 1994, an environmental analysis was
commenced or a contract was awarded to develop the specific
environmental analysis;
(ii) Sufficient environmental analysis is completed by March 15,
1994 so that the Federal agency may determine that the Federal action is
in conformity with the specific requirements and the purposes of the
applicable SIP pursuant to the agency's affirmative obligation under
section 176(c) of the Clean Air Act (Act); and
(iii) A written determination of conformity under section 176(c) of
the Act has been made by the Federal agency responsible for the Federal
action by March 15, 1994.
(d) Notwithstanding any provision of this subpart, a determination
that an action is in conformance with the applicable implementation plan
does not exempt the action from any other requirements of the applicable
implementation plan, the National Environmental Policy Act (NEPA), or
the Clean Air Act (Act).
[58 FR 63253, Nov. 30, 1993; 58 FR 67442, Dec. 21, 1993]
[[Page 585]]
Sec. 93.151 State implementation plan (SIP) revision.
The Federal conformity rules under this subpart, in addition to any
existing applicable State requirements, establish the conformity
criteria and procedures necessary to meet the Act requirements until
such time as the required conformity SIP revision is approved by EPA. A
State's conformity provisions must contain criteria and procedures that
are no less stringent than the requirements described in this subpart. A
State may establish more stringent conformity criteria and procedures
only if they apply equally to nonfederal as well as Federal entities.
Following EPA approval of the State conformity provisions (or a portion
thereof) in a revision to the applicable SIP, the approved (or approved
portion of the) State criteria and procedures would govern conformity
determinations and the Federal conformity regulations contained in this
part would apply only for the portion, if any, of the State's conformity
provisions that is not approved by EPA. In addition, any previously
applicable SIP requirements relating to conformity remain enforceable
until the State revises its SIP to specifically remove them from the SIP
and that revision is approved by EPA.
Sec. 93.152 Definitions.
Terms used but not defined in this part shall have the meaning given
them by the Act and EPA's regulations (40 CFR chapter I), in that order
of priority.
Affected Federal land manager means the Federal agency or the
Federal official charged with direct responsibility for management of an
area designated as Class I under the Act (42 U.S.C. 7472) that is
located within 100 km of the proposed Federal action.
Applicable implementation plan or applicable SIP means the portion
(or portions) of the SIP or most recent revision thereof, which has been
approved under section 110 of the Act, or promulgated under section
110(c) of the Act (Federal implementation plan), or promulgated or
approved pursuant to regulations promulgated under section 301(d) of the
Act and which implements the relevant requirements of the Act.
Areawide air quality modeling analysis means an assessment on a
scale that includes the entire nonattainment or maintenance area which
uses an air quality dispersion model to determine the effects of
emissions on air quality.
Cause or contribute to a new violation means a Federal action that:
(1) Causes a new violation of a national ambient air quality
standard (NAAQS) at a location in a nonattainment or maintenance area
which would otherwise not be in violation of the standard during the
future period in question if the Federal action were not taken; or
(2) Contributes, in conjunction with other reasonably foreseeable
actions, to a new violation of a NAAQS at a location in a nonattainment
or maintenance area in a manner that would increase the frequency or
severity of the new violation.
Caused by, as used in the terms ``direct emissions'' and ``indirect
emissions,'' means emissions that would not otherwise occur in the
absence of the Federal action.
Criteria pollutant or standard means any pollutant for which there
is established a NAAQS at 40 CFR part 50.
Direct emissions means those emissions of a criteria pollutant or
its precursors that are caused or initiated by the Federal action and
occur at the same time and place as the action.
Emergency means a situation where extremely quick action on the part
of the Federal agencies involved is needed and where the timing of such
Federal activities makes it impractical to meet the requirements of this
subpart, such as natural disasters like hurricanes or earthquakes, civil
disturbances such as terrorist acts and military mobilizations.
Emissions budgets are those portions of the applicable SIP's
projected emission inventories that describe the levels of emissions
(mobile, stationary, area, etc.) that provide for meeting reasonable
further progress milestones, attainment, and/or maintenance for any
criteria pollutant or its precursors.
Emissions offsets, for purposes of Sec. 93.158, are emissions
reductions which are quantifiable, consistent with the applicable SIP
attainment and reasonable further progress demonstrations,
[[Page 586]]
surplus to reductions required by, and credited to, other applicable SIP
provisions, enforceable at both the State and Federal levels, and
permanent within the timeframe specified by the program.
Emissions that a Federal agency has a continuing program
responsibility for means emissions that are specifically caused by an
agency carrying out its authorities, and does not include emissions that
occur due to subsequent activities, unless such activities are required
by the Federal agency. When an agency, in performing its normal program
responsibilities, takes actions itself or imposes conditions that result
in air pollutant emissions by a non-Federal entity taking subsequent
actions, such emissions are covered by the meaning of a continuing
program responsibility.
EPA means the Environmental Protection Agency.
Federal action means any activity engaged in by a department,
agency, or instrumentality of the Federal government, or any activity
that a department, agency or instrumentality of the Federal government
supports in any way, provides financial assistance for, licenses,
permits, or approves, other than activities related to transportation
plans, programs, and projects developed, funded, or approved under title
23 U.S.C. or the Federal Transit Act (49 U.S.C. 1601 et seq.). Where the
Federal action is a permit, license, or other approval for some aspect
of a non-Federal undertaking, the relevant activity is the part,
portion, or phase of the non-Federal undertaking that requires the
Federal permit, license, or approval.
Federal agency means, for purposes of this subpart, a Federal
department, agency, or instrumentality of the Federal government.
Increase the frequency or severity of any existing violation of any
standard in any area means to cause a nonattainment area to exceed a
standard more often or to cause a violation at a greater concentration
than previously existed and/or would otherwise exist during the future
period in question, if the project were not implemented.
Indirect emissions means those emissions of a criteria pollutant or
its precursors that:
(1) Are caused by the Federal action, but may occur later in time
and/or may be further removed in distance from the action itself but are
still reasonably foreseeable; and
(2) The Federal agency can practicably control and will maintain
control over due to a continuing program responsibility of the Federal
agency.
Local air quality modeling analysis means an assessment of localized
impacts on a scale smaller than the entire nonattainment or maintenance
area, including, for example, congested roadway intersections and
highways or transit terminals, which uses an air quality dispersion
model to determine the effects of emissions on air quality.
Maintenance area means an area with a maintenance plan approved
under section 175A of the Act.
Maintenance plan means a revision to the applicable SIP, meeting the
requirements of section 175A of the Act.
Metropolitan Planning Organization (MPO) is that organization
designated as being responsible, together with the State, for conducting
the continuing, cooperative, and comprehensive planning process under 23
U.S.C. 134 and 49 U.S.C. 1607.
Milestone has the meaning given in sections 182(g)(1) and 189(c)(1)
of the Act.
National ambient air quality standards (NAAQS) are those standards
established pursuant to section 109 of the Act and include standards for
carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO<INF>2</INF>),
ozone, particulate matter (PM-10), and sulfur dioxide (SO<INF>2</INF>).
NEPA is the National Environmental Policy Act of 1969, as amended
(42 U.S.C. 4321 et seq.).
Nonattainment area means an area designated as nonattainment under
section 107 of the Act and described in 40 CFR part 81.
Precursors of a criteria pollutant are:
(1) For ozone, nitrogen oxides (NOx), unless an area is exempted
from NOx requirements under section 182(f) of the Act, and volatile
organic compounds (VOC); and
(2) For PM-10, those pollutants described in the PM-10 nonattainment
[[Page 587]]
area applicable SIP as significant contributors to the PM-10 levels.
Reasonably foreseeable emissions are projected future indirect
emissions that are identified at the time the conformity determination
is made; the location of such emissions is known and the emissions are
quantifiable, as described and documented by the Federal agency based on
its own information and after reviewing any information presented to the
Federal agency.
Regional water and/or wastewater projects include construction,
operation, and maintenance of water or wastewater conveyances, water or
wastewater treatment facilities, and water storage reservoirs which
affect a large portion of a nonattainment or maintenance area.
Regionally significant action means a Federal action for which the
direct and indirect emissions of any pollutant represent 10 percent or
more of a nonattainment or maintenance area's emission inventory for
that pollutant.
Total of direct and indirect emissions means the sum of direct and
indirect emissions increases and decreases caused by the Federal action;
i.e., the ``net'' emissions considering all direct and indirect
emissions. The portion of emissions which are exempt or presumed to
conform under Sec. 93.153 (c), (d), (e), or (f) are not included in the
``total of direct and indirect emissions.'' The ``total of direct and
indirect emissions'' includes emissions of criteria pollutants and
emissions of precursors of criteria pollutants.
Sec. 93.153 Applicability.
(a) Conformity determinations for Federal actions related to
transportation plans, programs, and projects developed, funded, or
approved under title 23 U.S.C. or the Federal Transit Act (49 U.S.C.
1601 et seq.) must meet the procedures and criteria of 40 CFR part 51,
subpart T, in lieu of the procedures set forth in this subpart.
(b) For Federal actions not covered by paragraph (a) of this
section, a conformity determination is required for each pollutant where
the total of direct and indirect emissions in a nonattainment or
maintenance area caused by a Federal action would equal or exceed any of
the rates in paragraphs (b)(1) or (2) of this section.
(1) For purposes of paragraph (b) of this section, the following
rates apply in nonattainment areas (NAA's):
------------------------------------------------------------------------
Tons/
year
------------------------------------------------------------------------
Ozone (VOC's or NOX):
Serious NAA's................................................ 50
Severe NAA's................................................. 25
Extreme NAA's................................................ 10
Other ozone NAA's outside an ozone transport region.......... 100
Marginal and moderate NAA's inside an ozone transport region:
VOC.......................................................... 50
NOX.......................................................... 100
Carbon monoxide:
All NAA's.................................................... 100
SO2 or NO2:
All NAA's.................................................... 100
PM-10:
Moderate NAA's............................................... 100
Serious NAA's................................................ 70
Pb:
All NAA's.................................................... 25
------------------------------------------------------------------------
(2) For purposes of paragraph (b) of this section, the following
rates apply in maintenance areas:
------------------------------------------------------------------------
Tons/
year
------------------------------------------------------------------------
Ozone (NOX), SO2 or NO2:
All Maintenance Areas........................................ 100
Ozone (VOC's):
Maintenance areas inside an ozone transport region........... 50
Maintenance areas outside an ozone transport region.......... 100
Carbon monoxide:
All Maintenance Areas........................................ 100
PM-10:
All Maintenance Areas........................................ 100
Pb:
All Maintenance Areas........................................ 25
------------------------------------------------------------------------
(c) The requirements of this subpart shall not apply to the
following Federal actions:
(1) Actions where the total of direct and indirect emissions are
below the emissions levels specified in paragraph (b) of this section.
(2) Actions which would result in no emissions increase or an
increase in emissions that is clearly de minimis:
(i) Judicial and legislative proceedings.
(ii) Continuing and recurring activities such as permit renewals
where activities conducted will be similar in scope and operation to
activities currently being conducted.
(iii) Rulemaking and policy development and issuance.
[[Page 588]]
(iv) Routine maintenance and repair activities, including repair and
maintenance of administrative sites, roads, trails, and facilities.
(v) Civil and criminal enforcement activities, such as
investigations, audits, inspections, examinations, prosecutions, and the
training of law enforcement personnel.
(vi) Administrative actions such as personnel actions,
organizational changes, debt management or collection, cash management,
internal agency audits, program budget proposals, and matters relating
to the administration and collection of taxes, duties and fees.
(vii) The routine, recurring transportation of materiel and
personnel.
(viii) Routine movement of mobile assets, such as ships and
aircraft, in home port reassignments and stations (when no new support
facilities or personnel are required) to perform as operational groups
and/or for repair or overhaul.
(ix) Maintenance dredging and debris disposal where no new depths
are required, applicable permits are secured, and disposal will be at an
approved disposal site.
(x) Actions, such as the following, with respect to existing
structures, properties, facilities and lands where future activities
conducted will be similar in scope and operation to activities currently
being conducted at the existing structures, properties, facilities, and
lands; for example, relocation of personnel, disposition of federally-
owned existing structures, properties, facilities, and lands, rent
subsidies, operation and maintenance cost subsidies, the exercise of
receivership or conservatorship authority, assistance in purchasing
structures, and the production of coins and currency.
(xi) The granting of leases, licenses such as for exports and trade,
permits, and easements where activities conducted will be similar in
scope and operation to activities currently being conducted.
(xii) Planning, studies, and provision of technical assistance.
(xiii) Routine operation of facilities, mobile assets and equipment.
(xiv) Transfers of ownership, interests, and titles in land,
facilities, and real and personal properties, regardless of the form or
method of the transfer.
(xv) The designation of empowerment zones, enterprise communities,
or viticultural areas.
(xvi) Actions by any of the Federal banking agencies or the Federal
Reserve Banks, including actions regarding charters, applications,
notices, licenses, the supervision or examination of depository
institutions or depository institution holding companies, access to the
discount window, or the provision of financial services to banking
organizations or to any department, agency or instrumentality of the
United States.
(xvii) Actions by the Board of Governors of the Federal Reserve
System or any Federal Reserve Bank necessary to effect monetary or
exchange rate policy.
(xviii) Actions that implement a foreign affairs function of the
United States.
(xix) Actions (or portions thereof) associated with transfers of
land, facilities, title, and real properties through an enforceable
contract or lease agreement where the delivery of the deed is required
to occur promptly after a specific, reasonable condition is met, such as
promptly after the land is certified as meeting the requirements of
CERCLA, and where the Federal agency does not retain continuing
authority to control emissions associated with the lands, facilities,
title, or real properties.
(xx) Transfers of real property, including land, facilities, and
related personal property from a Federal entity to another Federal
entity and assignments of real property, including land, facilities, and
related personal property from a Federal entity to another Federal
entity for subsequent deeding to eligible applicants.
(xxi) Actions by the Department of the Treasury to effect fiscal
policy and to exercise the borrowing authority of the United States.
(3) Actions where the emissions are not reasonably foreseeable, such
as the following:
(i) Initial Outer Continental Shelf lease sales which are made on a
broad scale and are followed by exploration
[[Page 589]]
and development plans on a project level.
(ii) Electric power marketing activities that involve the
acquisition, sale and transmission of electric energy.
(4) Actions which implement a decision to conduct or carry out a
conforming program such as prescribed burning actions which are
consistent with a conforming land management plan.
(d) Notwithstanding the other requirements of this subpart, a
conformity determination is not required for the following Federal
actions (or portion thereof):
(1) The portion of an action that includes major new or modified
stationary sources that require a permit under the new source review
(NSR) program (section 173 of the Act) or the prevention of significant
deterioration program (title I, part C of the Act).
(2) Actions in response to emergencies or natural disasters such as
hurricanes, earthquakes, etc., which are commenced on the order of hours
or days after the emergency or disaster and, if applicable, which meet
the requirements of paragraph (e) of this section.
(3) Research, investigations, studies, demonstrations, or training
(other than those exempted under paragraph (c)(2) of this section),
where no environmental detriment is incurred and/or, the particular
action furthers air quality research, as determined by the State agency
primarily responsible for the applicable SIP;
(4) Alteration and additions of existing structures as specifically
required by new or existing applicable environmental legislation or
environmental regulations (e.g., hush houses for aircraft engines and
scrubbers for air emissions).
(5) Direct emissions from remedial and removal actions carried out
under the Comprehensive Environmental Response, Compensation and
Liability Act and associated regulations to the extent such emissions
either comply with the substantive requirements of the PSD/NSR
permitting program or are exempted from other environmental regulation
under the provisions of CERCLA and applicable regulations issued under
CERCLA.
(e) Federal actions which are part of a continuing response to an
emergency or disaster under paragraph (d)(2) of this section and which
are to be taken more than 6 months after the commencement of the
response to the emergency or disaster under paragraph (d)(2) of this
section are exempt from the requirements of this subpart only if:
(1) The Federal agency taking the actions makes a written
determination that, for a specified period not to exceed an additional 6
months, it is impractical to prepare the conformity analyses which would
otherwise be required and the actions cannot be delayed due to
overriding concerns for public health and welfare, national security
interests and foreign policy commitments; or
(2) For actions which are to be taken after those actions covered by
paragraph (e)(1) of this section, the Federal agency makes a new
determination as provided in paragraph (e)(1) of this section.
(f) Notwithstanding other requirements of this subpart, actions
specified by individual Federal agencies that have met the criteria set
forth in either paragraph (g)(1) or (g)(2) of this section and the
procedures set forth in paragraph (h) of this section are presumed to
conform, except as provided in paragraph (j) of this section.
(g) The Federal agency must meet the criteria for establishing
activities that are presumed to conform by fulfilling the requirements
set forth in either paragraph (g)(1) or (g)(2) of this section:
(1) The Federal agency must clearly demonstrate using methods
consistent with this subpart that the total of direct and indirect
emissions from the type of activities which would be presumed to conform
would not:
(i) Cause or contribute to any new violation of any standard in any
area;
(ii) Interfere with provisions in the applicable SIP for maintenance
of any standard;
(iii) Increase the frequency or severity of any existing violation
of any standard in any area; or
(iv) Delay timely attainment of any standard or any required interim
emission reductions or other milestones in
[[Page 590]]
any area including, where applicable, emission levels specified in the
applicable SIP for purposes of:
(A) A demonstration of reasonable further progress;
(B) A demonstration of attainment; or
(C) A maintenance plan; or
(2) The Federal agency must provide documentation that the total of
direct and indirect emissions from such future actions would be below
the emission rates for a conformity determination that are established
in paragraph (b) of this section, based, for example, on similar actions
taken over recent years.
(h) In addition to meeting the criteria for establishing exemptions
set forth in paragraphs (g)(1) or (g)(2) of this section, the following
procedures must also be complied with to presume that activities will
conform:
(1) The Federal agency must identify through publication in the
Federal Register its list of proposed activities that are presumed to
conform and the basis for the presumptions;
(2) The Federal agency must notify the appropriate EPA Regional
Office(s), State and local air quality agencies and, where applicable,
the agency designated under section 174 of the Act and the MPO and
provide at least 30 days for the public to comment on the list of
proposed activities presumed to conform;
(3) The Federal agency must document its response to all the
comments received and make the comments, response, and final list of
activities available to the public upon request; and
(4) The Federal agency must publish the final list of such
activities in the Federal Register.
(i) Notwithstanding the other requirements of this subpart, when the
total of direct and indirect emissions of any pollutant from a Federal
action does not equal or exceed the rates specified in paragraph (b) of
this section, but represents 10 percent or more of a nonattainment or
maintenance area's total emissions of that pollutant, the action is
defined as a regionally significant action and the requirements of Sec.
93.150 and Sec. Sec. 93.155 through 93.160 shall apply for the Federal
action.
(j) Where an action otherwise presumed to conform under paragraph
(f) of this section is a regionally significant action or does not in
fact meet one of the criteria in paragraph (g)(1) of this section, that
action shall not be presumed to conform and the requirements of Sec.
93.150 and Sec. Sec. 93.155 through 93.160 shall apply for the Federal
action.
(k) The provisions of this subpart shall apply in all nonattainment
and maintenance areas.
Sec. 93.154 Conformity analysis.
Any Federal department, agency, or instrumentality of the Federal
government taking an action subject to this subpart must make its own
conformity determination consistent with the requirements of this
subpart. In making its conformity determination, a Federal agency must
consider comments from any interested parties. Where multiple Federal
agencies have jurisdiction for various aspects of a project, a Federal
agency may choose to adopt the analysis of another Federal agency or
develop its own analysis in order to make its conformity determination.
Sec. 93.155 Reporting requirements.
(a) A Federal agency making a conformity determination under Sec.
93.158 must provide to the appropriate EPA Regional Office(s), State and
local air quality agencies and, where applicable, affected Federal land
managers, the agency designated under section 174 of the Act and the MPO
a 30 day notice which describes the proposed action and the Federal
agency's draft conformity determination on the action.
(b) A Federal agency must notify the appropriate EPA Regional
Office(s), State and local air quality agencies and, where applicable,
affected Federal land managers, the agency designated under section 174
of the Clean Air Act and the MPO within 30 days after making a final
conformity determination under Sec. 93.158.
Sec. 93.156 Public participation.
(a) Upon request by any person regarding a specific Federal action,
a Federal agency must make available for review its draft conformity
determination under Sec. 93.158 with supporting
[[Page 591]]
materials which describe the analytical methods and conclusions relied
upon in making the applicability analysis and draft conformity
determination.
(b) A Federal agency must make public its draft conformity
determination under Sec. 93.158 by placing a notice by prominent
advertisement in a daily newspaper of general circulation in the area
affected by the action and by providing 30 days for written public
comment prior to taking any formal action on the draft determination.
This comment period may be concurrent with any other public involvement,
such as occurs in the NEPA process.
(c) A Federal agency must document its response to all the comments
received on its draft conformity determination under Sec. 93.158 and
make the comments and responses available, upon request by any person
regarding a specific Federal action, within 30 days of the final
conformity determination.
(d) A Federal agency must make public its final conformity
determination under Sec. 93.158 for a Federal action by placing a
notice by prominent advertisement in a daily newspaper of general
circulation in the area affected by the action within 30 days of the
final conformity determination.
Sec. 93.157 Frequency of conformity determinations.
(a) The conformity status of a Federal action automatically lapses 5
years from the date a final conformity determination is reported under
Sec. 93.155, unless the Federal action has been completed or a
continuous program has been commenced to implement that Federal action
within a reasonable time.
(b) Ongoing Federal activities at a given site showing continuous
progress are not new actions and do not require periodic
redeterminations so long as such activities are within the scope of the
final conformity determination reported under Sec. 93.155.
(c) If, after the conformity determination is made, the Federal
action is changed so that there is an increase in the total of direct
and indirect emissions, above the levels in Sec. 93.153(b), a new
conformity determination is required.
Sec. 93.158 Criteria for determining conformity of general Federal
actions.
(a) An action required under Sec. 93.153 to have a conformity
determination for a specific pollutant, will be determined to conform to
the applicable SIP if, for each pollutant that exceeds the rates in
Sec. 93.153(b), or otherwise requires a conformity determination due to
the total of direct and indirect emissions from the action, the action
meets the requirements of paragraph (c) of this section, and meets any
of the following requirements:
(1) For any criteria pollutant, the total of direct and indirect
emissions from the action are specifically identified and accounted for
in the applicable SIP's attainment or maintenance demonstration;
(2) For ozone or nitrogen dioxide, the total of direct and indirect
emissions from the action are fully offset within the same nonattainment
or maintenance area through a revision to the applicable SIP or a
similarly enforceable measure that effects emission reductions so that
there is no net increase in emissions of that pollutant;
(3) For any criteria pollutant, except ozone and nitrogen dioxide,
the total of direct and indirect emissions from the action meet the
requirements:
(i) Specified in paragraph (b) of this section, based on areawide
air quality modeling analysis and local air quality modeling analysis;
or
(ii) Meet the requirements of paragraph (a)(5) of this section and,
for local air quality modeling analysis, the requirement of paragraph
(b) of this section;
(4) For CO or PM-10--
(i) Where the State agency primarily responsible for the applicable
SIP determines that an areawide air quality modeling analysis is not
needed, the total of direct and indirect emissions from the action meet
the requirements specified in paragraph (b) of this section, based on
local air quality modeling analysis; or
(ii) Where the State agency primarily responsible for the applicable
SIP determines that an areawide air quality modeling analysis is
appropriate and that a local air quality modeling analysis is not
needed, the total of direct and indirect emissions from the action
[[Page 592]]
meet the requirements specified in paragraph (b) of this section, based
on areawide modeling, or meet the requirements of paragraph (a)(5) of
this section; or
(5) For ozone or nitrogen dioxide, and for purposes of paragraphs
(a)(3)(11) and (a)(4)(ii) of this section, each portion of the action or
the action as a whole meets any of the following requirements:
(i) Where EPA has approved a revision to an area's attainment or
maintenance demonstration after 1990 and the State makes a determination
as provided in paragraph (a)(5)(i)(A) of this section or where the State
makes a commitment as provided in paragraph (a)(5)(i)(B) of this
section:
(A) The total of direct and indirect emissions from the action (or
portion thereof) is determined and documented by the State agency
primarily responsible for the applicable SIP to result in a level of
emissions which, together with all other emissions in the nonattainment
(or maintenance) area, would not exceed the emissions budgets specified
in the applicable SIP;
(B) The total of direct and indirect emissions from the action (or
portion thereof) is determined by the State agency responsible for the
applicable SIP to result in a level of emissions which, together with
all other emissions in the nonattainment (or maintenance) area, would
exceed an emissions budget specified in the applicable SIP and the State
Governor or the Governor's designee for SIP actions makes a written
commitment to EPA which includes the following:
(1) A specific schedule for adoption and submittal of a revision to
the SIP which would achieve the needed emission reductions prior to the
time emissions from the Federal action would occur;
(2) Identification of specific measures for incorporation into the
SIP which would result in a level of emissions which, together with all
other emissions in the nonattainment or maintenance area, would not
exceed any emissions budget specified in the applicable SIP;
(3) A demonstration that all existing applicable SIP requirements
are being implemented in the area for the pollutants affected by the
Federal action, and that local authority to implement additional
requirements has been fully pursued;
(4) A determination that the responsible Federal agencies have
required all reasonable mitigation measures associated with their
action; and
(5) Written documentation including all air quality analyses
supporting the conformity determination;
(C) Where a Federal agency made a conformity determination based on
a State commitment under paragraph (a)(5)(i)(B) of this section, such a
State commitment is automatically deemed a call for a SIP revision by
EPA under section 110(k)(5) of the Act, effective on the date of the
Federal conformity determination and requiring response within 18 months
or any shorter time within which the State commits to revise the
applicable SIP;
(ii) The action (or portion thereof), as determined by the MPO, is
specifically included in a current transportation plan and
transportation improvement program which have been found to conform to
the applicable SIP under 40 CFR part 51, subpart T, or 40 CFR part 93,
subpart A;
(iii) The action (or portion thereof) fully offsets its emissions
within the same nonattainment or maintenance area through a revision to
the applicable SIP or an equally enforceable measure that effects
emission reductions equal to or greater than the total of direct and
indirect emissions from the action so that there is no net increase in
emissions of that pollutant;
(iv) Where EPA has not approved a revision to the relevant SIP
attainment or maintenance demonstration since 1990, the total of direct
and indirect emissions from the action for the future years (described
in Sec. 93.159(d) do not increase emissions with respect to the
baseline emissions:
(A) The baseline emissions reflect the historical activity levels
that occurred in the geographic area affected by the proposed Federal
action during:
(1) Calendar year 1990;
(2) The calendar year that is the basis for the classification (or,
where the classification is based on multiple years, the most
representative year), if
[[Page 593]]
a classification is promulgated in 40 CFR part 81; or
(3) The year of the baseline inventory in the PM-10 applicable SIP;
(B) The baseline emissions are the total of direct and indirect
emissions calculated for the future years (described in Sec. 93.159(d))
using the historic activity levels (described in paragraph (a)(5)(iv)(A)
of this section) and appropriate emission factors for the future years;
or
(v) Where the action involves regional water and/or wastewater
projects, such projects are sized to meet only the needs of population
projections that are in the applicable SIP.
(b) The areawide and/or local air quality modeling analyses must:
(1) Meet the requirements in Sec. 93.159; and
(2) Show that the action does not:
(i) Cause or contribute to any new violation of any standard in any
area; or
(ii) Increase the frequency or severity of any existing violation of
any standard in any area.
(c) Notwithstanding any other requirements of this section, an
action subject to this subpart may not be determined to conform to the
applicable SIP unless the total of direct and indirect emissions from
the action is in compliance or consistent with all relevant requirements
and milestones contained in the applicable SIP, such as elements
identified as part of the reasonable further progress schedules,
assumptions specified in the attainment or maintenance demonstration,
prohibitions, numerical emission limits, and work practice requirements.
(d) Any analyses required under this section must be completed, and
any mitigation requirements necessary for a finding of conformity must
be identified before the determination of conformity is made.
Sec. 93.159 Procedures for conformity determinations of general
Federal actions.
(a) The analyses required under this subpart must be based on the
latest planning assumptions.
(1) All planning assumptions must be derived from the estimates of
population, employment, travel, and congestion most recently approved by
the MPO, or other agency authorized to make such estimates, where
available.
(2) Any revisions to these estimates used as part of the conformity
determination, including projected shifts in geographic location or
level of population, employment, travel, and congestion, must be
approved by the MPO or other agency authorized to make such estimates
for the urban area.
(b) The analyses required under this subpart must be based on the
latest and most accurate emission estimation techniques available as
described below, unless such techniques are inappropriate. If such
techniques are inappropriate and written approval of the EPA Regional
Administrator is obtained for any modification or substitution, they may
be modified or another technique substituted on a case-by-case basis or,
where appropriate, on a generic basis for a specific Federal agency
program.
(1) For motor vehicle emissions, the most current version of the
motor vehicle emissions model specified by EPA and available for use in
the preparation or revision of SIPs in that State must be used for the
conformity analysis as specified in paragraphs (b)(1)(i) and (ii) of
this section:
(i) The EPA must publish in the Federal Register a notice of
availability of any new motor vehicle emissions model; and
(ii) A grace period of 3 months shall apply during which the motor
vehicle emissions model previously specified by EPA as the most current
version may be used. Conformity analyses for which the analysis was
begun during the grace period or no more than 3 years before the Federal
Register notice of availability of the latest emission model may
continue to use the previous version of the model specified by EPA.
(2) For non-motor vehicle sources, including stationary and area
source emissions, the latest emission factors specified by EPA in the
``Compilation of Air Pollutant Emission Factors (AP-
[[Page 594]]
42)'' \1\ must be used for the conformity analysis unless more accurate
emission data are available, such as actual stack test data from
stationary sources which are part of the conformity analysis.
---------------------------------------------------------------------------
\1\ Copies may be obtained from the Technical Support Division of
OAQPS, EPA, MD-14, Research Triangle Park, NC 27711.
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(c) The air quality modeling analyses required under this subpart
must be based on the applicable air quality models, data bases, and
other requirements specified in the most recent version of the
``Guideline on Air Quality Models (Revised)'' (1986), including
supplements (EPA publication no. 450/2-78-027R) \2\, unless:
---------------------------------------------------------------------------
\2\ See footnote 1 at Sec. 93.159(b)(2).
---------------------------------------------------------------------------
(1) The guideline techniques are inappropriate, in which case the
model may be modified or another model substituted on a case-by-case
basis or, where appropriate, on a generic basis for a specific Federal
agency program; and
(2) Written approval of the EPA Regional Administrator is obtained
for any modification or substitution.
(d) The analyses required under this subpart, except Sec.
93.158(a)(1), must be based on the total of direct and indirect
emissions from the action and must reflect emission scenarios that are
expected to occur under each of the following cases:
(1) The Act mandated attainment year or, if applicable, the farthest
year for which emissions are projected in the maintenance plan;
(2) The year during which the total of direct and indirect emissions
from the action is expected to be the greatest on an annual basis; and
(3) Any year for which the applicable SIP specifies an emissions
budget.
Sec. 93.160 Mitigation of air quality impacts.
(a) Any measures that are intended to mitigate air quality impacts
must be identified and the process for implementation and enforcement of
such measures must be described, including an implementation schedule
containing explicit timelines for implementation.
(b) Prior to determining that a Federal action is in conformity, the
Federal agency making the conformity determination must obtain written
commitments from the appropriate persons or agencies to implement any
mitigation measures which are identified as conditions for making
conformity determinations.
(c) Persons or agencies voluntarily committing to mitigation
measures to facilitate positive conformity determinations must comply
with the obligations of such commitments.
(d) In instances where the Federal agency is licensing, permitting
or otherwise approving the action of another governmental or private
entity, approval by the Federal agency must be conditioned on the other
entity meeting the mitigation measures set forth in the conformity
determination.
(e) When necessary because of changed circumstances, mitigation
measures may be modified so long as the new mitigation measures continue
to support the conformity determination. Any proposed change in the
mitigation measures is subject to the reporting requirements of Sec.
93.156 and the public participation requirements of Sec. 93.157.
(f) The implementation plan revision required in Sec. 93.151 shall
provide that written commitments to mitigation measures must be obtained
prior to a positive conformity determination and that such commitments
must be fulfilled.
(g) After a State revises its SIP to adopt its general conformity
rules and EPA approves that SIP revision, any agreements, including
mitigation measures, necessary for a conformity determination will be
both State and federally enforceable. Enforceability through the
applicable SIP will apply to all persons who agree to mitigate direct
and indirect emissions associated with a Federal action for a conformity
determination.
[[Page 595]]
[Page 336-337]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 51_REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS--Table of Contents
Subpart T_Conformity to State or Federal Implementation Plans of Transportation
Plans, Programs, and Projects Developed, Funded or Approved Under Title 23
U.S.C. or the Federal Transit Laws
Sec. 51.390 Implementation plan revision.
(a) States with areas subject to this subpart and part 93, subpart
A, of this chapter must submit to the EPA and DOT a revision to their
implementation plan which contains criteria and procedures for DOT, MPOs
and other State or local agencies to assess the conformity of
transportation plans, programs, and projects, consistent with this
subpart and part 93, subpart A, of this chapter. This revision is to be
submitted by November 25, 1994 (or within 12 months of an area's
redesignation from attainment to nonattainment, if the State has not
previously submitted such a revision). Further revisions to the
implementation plan required by amendments to part 93, subpart A, of
this chapter must be submitted within 12 months of the date of
publication of such final amendments. EPA will provide DOT with a 30-day
comment period before taking action to approve or disapprove the
submission. A State's conformity provisions may contain criteria and
procedures more stringent than the requirements described in this
subpart and part 93, subpart A, of this chapter only if the State's
conformity provisions apply equally to non-federal as well as Federal
entities.
(b) The Federal conformity rules under part 93, subpart A, of this
chapter, in addition to any existing applicable State requirements,
establish the conformity criteria and procedures necessary to meet the
requirements of Clean Air Act section 176(c) until such time as EPA
approves the conformity implementation plan revision required by this
subpart. Following EPA approval of the State conformity provisions (or a
portion thereof) in a revision to the applicable implementation plan,
conformity determinations would be governed by the approved (or approved
portion of the) State criteria and procedures. The Federal conformity
regulations contained in part
[[Page 337]]
93, subpart A, of this chapter would apply only for the portion, if any,
of the State's conformity provisions that is not approved by EPA. In
addition, any previously applicable implementation plan conformity
requirements remain enforceable until the State submits a revision to
its applicable implementation plan to specifically remove them and that
revision is approved by EPA.
(c) The implementation plan revision required by this section must
meet all of the requirements of part 93, subpart A, of this chapter.
(d) In order for EPA to approve the implementation plan revision
submitted to EPA and DOT under this subpart, the plan must address all
requirements of part 93, subpart A, of this chapter in a manner which
gives them full legal effect. In particular, the revision shall
incorporate the provisions of the following sections of part 93, subpart
A, of this chapter in verbatim form, except insofar as needed to clarify
or to give effect to a stated intent in the revision to establish
criteria and procedures more stringent than the requirements stated in
the following sections of this chapter: Sec. Sec. 93.101, 93.102,
93.103, 93.104, 93.106, 93.109, 93.110, 93.111, 93.112, 93.113, 93.114,
93.115, 93.116, 93.117, 93.118, 93.119, 93.120, 93.121, 93.126, and
93.127.
[62 FR 43801, Aug. 15, 1997]
| File Type | application/msword |
| File Modified | 0000-00-00 |
| File Created | 0000-00-00 |